Legal implications of declaring a person dead in absentia for criminal proceedings

2019 ◽  
Vol 2 (XIX) ◽  
pp. 79-93
Author(s):  
Jan Kil
Keyword(s):  
Court Decision ◽  
Natural Death ◽  
Criminal Proceedings ◽  
Legal Implications ◽  
Judicial Proceedings ◽  
The Subject ◽  
Legal Consequences

The subject of the article is the analysis of legal implications of declaring a person dead in absentia for criminal proceedings. The article covers the main issues of declaring a person dead in absentia, in which the court may issue a ruling equivalent in legal effects to natural death of man. The paper examines the influence of declaring a person dead in absentia for preparatory proceedings, judicial proceedings as well as executive proceedings. The author analyses also a situation, when the previous court decision of declaring a person dead in absentia would turn out to be erroneous. Besides, the author examines a legal consequences of declaring a person dead in absentia for statutes of limitations on criminal actions.

scholarly journals Some gaps in criminal procedural legislation at the time of court decisions appeal

2021 ◽  
pp. 155-164
Author(s):  
V. I. Maryniv ◽  
O. Leiba
Keyword(s):  
Legal Regulation ◽  
Practical Implementation ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Research Attention ◽  
Judicial Proceedings ◽  
The Subject ◽  
The Right ◽  
The Given ◽  
Appeal Procedure

The article is dedicated to the explanation of such legislative defects as gaps in the criminal procedural legislation during court decisions appeal. Within the framework of the study the attention focuses on the fact that regulatory rulemaking of the court decisions appeal in criminal proceeding contains multiple gaps that affect negatively at its practical implementation. Detailed analysis of the gaps in the criminal procedure legislation has been carried out. By reference to specific aspects of the judicial review implementation, the gaps classification according to their subject is proposed.  More specifically the following gaps in the rulemaking of the court decisions appeal in criminal proceedings are identified: 1) concerning the object of appeal; 2) concerning the appealer; 3) concerning the subject of appeal; 4) concerning the appeal procedure, etc. It is pointed out that number of legal regulation gaps regarding the identification of the object of appeal is quite significant. Such gaps arise in response to the determining a list of court decisions by the legislator that are subject to appeal consequently making impossible reviewing those court decisions that are not directly enlisted. Such matter is illustrated by the example of the establishment of restrictions on the ability to appeal the investigating magistrate decisions. Considering the gaps concerning the appealer it is pointed out that in some cases the legislation does not provide the right of relevant parties for court decisions appeal or does not provide them with sufficient legal opportunities which limits a person’s constitutional privilege for court decision appeal review and his/her access to judicial proceedings. The analysis of gaps concerning the subject of appeal was also carried out. It is concluded with reason that such gaps arise due to the disadvantageous legislative determining of the issues which are allowed to appeal procedure. In the course of the research attention is drawn to the fact that the criminal procedural legislature furthermore contains other gaps in the rulemaking of court decisions appeal. In particular they concern the appeal procedure itself, implementation of the rights of its participants and some other issues. By way of illustration of the given type of gap it is indicated that the opportunity of implementation of the right to appeal for those persons who are directly granted with it by the law may be complicated due to the shortage of the actual opportunity to appeal against the judgment, in light of the high requirements for its content and format, advanced by the domestic lawmaking body. In the article motions considering eliminating and overcoming the enlisted legislative defects are formulated.

CRIMINAL RESPONSIBILITY FOR THE ILLEGAL CROSSING THE STATE BORDER

2019 ◽  
pp. 275
Author(s):  
Aivis Trukšāns
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
The State ◽  
The European Union ◽  
Criminal Proceedings ◽  
Judicial Proceedings ◽  
The Subject ◽  
Analysis Determination

The author of the publication, selected the topic “Criminal responsibility for the illegal crossing the State border” for his publication. The subject of the publication is important, because in the search for better quality of life, a large number of immigrants try to enter the European Union illegally. The purpose of the publication is to explore and clarify what forms of criminal liability exist when crossing the national border illegally and what is the problem of criminalization in the process. The following tasks were highlighted for drawing up the publication: to study clarification of the concept of the State border in connection with criminal responsibility for illegally crossed State border; to carry out an analysis of procedural issues in pre-trial criminal proceedings and judicial proceedings. Conduct a penal policy analysis, determination of the problems of application of penalties.

scholarly journals ABOUT GAPS IN MORTGAGE LEGAL RELATIONS IN IMPLEMENTATION OF MORTGAGE SUBJECT

2020 ◽  
Keyword(s):  
Legal Regulation ◽  
Court Decision ◽  
Legal Certainty ◽  
Long Time ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
Subjective Rights ◽  
Mortgage Law ◽  
Legal Consequences

The purpose of this article is to identify loopholes in the mortgage law of Ukraine, in particular if the creditor has not properly exercised his or her right to a final court decision to satisfy his / her claims at the expense of the mortgage subject, resulting in violations of subjective rights of the mortgagee. It is noted that in practice, when applying the Law of Ukraine "On Mortgage" of 05.06.2003 № 898-IV outside the sphere of legal regulation of this law there is a question of legal consequences in case the creditor did not use within a certain time his right on the basis of a court decision on satisfaction his claims on the subject of the mortgage, including termination of the mortgage on these grounds. It is noted that the issue is unsettled: whether the debtor has the right to demand termination of the mortgage agreement, if the lender has chosen a way to satisfy his claims precisely by applying the foreclosure for the mortgage through his public auction, which was decided by the court, does not take any action on enforcement of this judgment. It is emphasized that the issue of the possibility of termination of a mortgage obligation as a result of abuse by the creditor of the right to enforce the obligation is important, in particular when the value of the property transferred to the mortgage exceeds considerably the amount of credit debt of the debtor and the mortgagee (the owner of the property) with encumbered property, unable to dispose of it, waiting for a long time to properly execute the court decision. The authors believe that, because of the improper execution of the court decision and the terms of the mortgage agreement, the mortgagee should also bear the burden of liability and certain losses in this case as well. Therefore, to protect the subjective rights of both the mortgagee and the mortgagee, the authors propose to overcome the gap in the Law of Ukraine "On Mortgage" by amending Art. 17. after the second part of the new part reads as follows: "if the mortgagee has not taken any measures to realize the subject of the mortgage for the execution of the judgment". That is, through the introduction of appropriate amendments to the legislation provides legal certainty in the mortgage relationship.

scholarly journals PROBLEM ASPECTS OF DEFINITION OF THE CONCEPT OF PREDUDICATION IN THE MODERN CRIMINAL PROCESS

2020 ◽  
Vol 73 (4) ◽  
pp. 163-168
Author(s):  
Olexiy Scriabin ◽  
Keyword(s):  
Legal Regulation ◽  
Legal Rule ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Space ◽  
The Subject ◽  
The Difference ◽  
Definition Of ◽  
Legal Consequences

The article considers the issue of defining the essence of the concept of prejudice in criminal proceedings. Prejudice is a complex and multifaceted concept. Depending on the meaning of the concept, the scope and effect of the institution of prejudice in criminal proceedings may be narrowed or expanded. The approaches of modern scientists to the definition of prejudice are highlighted. Prejudice is a rule of evidence, which establishes the procedure and grounds for use in the process of proof by the investigator, prosecutor, body of inquiry, judge, court of legal conclusions and facts established by those that have entered into force on the basis of the investigator, prosecutor , courts in administrative, commercial, civil or criminal cases, which essentially resolved the case, as those that do not require re-proof. The classification of prejudices according to the scale of application in the legal space is considered; depending on the subordination in legal regulation; by the nature of the connection with other cases; depending on the legislative consolidation; by legal consequences; depending on the subject of legal regulation; depending on the ability of the participants in the process to challenge the prejudice; by the subject of the creation of the prejudice. The problematic aspects of determining prejudices are analyzed. Necessary and important in determining the essence of the concept of prejudice is its distinction with the concepts of presumption, precedent and prejudice. The difference between precedent and presumption is manifested in the fact that precedent contains a legal rule for resolving a legal dispute, and prejudice is an evidentiary rule for the use of facts and legal conclusions. Prejudice and prejudice are not identical, as prejudice is a manifestation of such a characteristic of the legal force of a court decision as binding. The difference between a presumption and a prejudice lies primarily in their scope.

Provision of the access to justice for consideration of criminal procedure dispute in the court of cassation

2021 ◽  
pp. 37-48
Author(s):  
Tatiana Topilina
Keyword(s):  
Criminal Procedure ◽  
Time Constraint ◽  
Court Decision ◽  
Access To Justice ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
The Subject ◽  
The Right ◽  
Right Of Access ◽  
Court Hearing

This article analyzes the problems of exercising the right of access to justice for consideration of criminal procedure dispute in the court of cassation. The author examines the legislation of post-Soviet countries in terms of provision the access to justice for consideration of criminal procedure dispute in the court of cassation. The subject of this research is the norms of Russian and foreign legislation that regulate to right of access to justice in criminal proceedings. The object of this research is the legal relations that emerge in implementation of the right of access to justice. It its demonstrated that the restriction on access to justice for consideration of criminal procedure dispute in the court of cassation instance is the time constraint for filing cassation appeal for the convict; and for consideration of interlocutory court decisions – the procedure for assessing cassation appeal without holding a court hearing. The conclusion is substantiated on the need to waive the time constraint for filing cassation appeal for the convict against final court decisions that have entered into force, and for consideration of interim court decisions, the procedure for assessing cassation appeal against the interlocutory court decision should be eliminated without holding a court hearing.

scholarly journals Legal Consequences on PPAT Deed Not Made in Accordance with the Provisions Case Study of Court Decision No.137 / PID.B / 2016 / PN.PBR

2019 ◽  
Vol 6 (5) ◽  
pp. 225
Author(s):  
Mhd. Mora Kamis Nst ◽  
Elwi Danil ◽  
Beatrix Benni
Keyword(s):  
Legal Protection ◽  
Field Studies ◽  
Court Decision ◽  
Primary Data ◽  
Legal Certainty ◽  
Legal Implications ◽  
One Year ◽  
Work Done ◽  
Legal Consequences

The notary profession that can concurrently serve as a PPAT is one of the professions that has taken part in the process of law enforcement in Indonesia by providing certainty, order and legal protection in the community, especially in terms of the need for a binding evidence in addition to witness evidence, which is in the form of making authentic evidence. The notary profession is also required to be able to provide legal certainty to the parties, which means that anyone who holds the position of a notary must comply with statutory provisions, as well as PPAT in carrying out his position. But in reality what happens is that there is still a lot of work done by notaries or PPAT which ultimately has legal implications for the authority carried out by notaries or PPAT, so that the public, especially the parties involved in the deed, become confused in seeking legal certainty and in a manner indirectly can cause huge material losses to people who need justice. Research data were collected through field studies through interviews with resource persons to obtain primary data and literature studies to obtain primary data. The focus of this research is to find out and analyze how the legal consequences of the deed made not in accordance with the provisions of the case study court decision no.137 / pid.b / 2016 / pn.pbr. The results of the study showed that 1) PPAT which was proven to have committed a crime of counterfeiting was responsible for his sentence with a prison sentence of 1 (one) Year 8 (eight) Months. 2) The legal consequences of the deed made are not in accordance with the provisions of the legislation because it contains elements of forgery, the deed is null and void by law and for the certificate of transfer of land rights issued with the deed as the basis, then with the court's decision the judge has stated that the certificate the legal defect and cancellation can be requested to the local Office of the Land Agency.

scholarly journals Inkonsistensi Putusan MK No. 49/PUU-X/2012 dan Putusan MK No. 22/PUU-XVII/2019 Terkait Peraturan Jabatan Notaris

Acta Comitas ◽  
2019 ◽  
Vol 4 (3) ◽  
pp. 452
Author(s):  
Yunita Mahendrawati H.P.
Keyword(s):  
Material Testing ◽  
Public Confidence ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
Analysis Techniques ◽  
Legal Implications ◽  
Judicial Proceedings ◽  
The Subject ◽  
Notary Public

Decision of the Constitutional Court No. 49 / PUU-X / 2012 which cancels the phrase "with the approval of the MPD" resulting in the authority of the MPD stipulated in Article 66 paragraph (1) of Law No. 30 of 2004 concerning the Position of Notary (UUJN) resulting in the loss of MPD's authority to give approval to investigators, prosecutors or judges for judicial proceedings involving notary public. Then the article was the subject of a lawsuit to be petitioned for material testing at the Constitutional Court, which was then terminated in Decision of the Constitutional Court No. 22 / PUU-XVII / 2019. However, the ruling of the Constitutional Court's ruling gave rise to a ruling that was different from the previous ruling, which stated that "Article 66 paragraph (1) UUJNP does not contradict the 1945 Constitution". The purpose of this paper is to find out changes to the regulations of the position of the Notary public after Decision of the Constitutional Court No. 49 / PUU-X / 2012 and to assess the inconsistency of the Constitutional Court's Decision on the review of material in Article 66 UUJN. This research is a normative legal research using the law approach, conceptual approach and case approach. The analyzed legal materials are primary and secondary legal materials with descriptive, comparative, evaluative and argumentative analysis techniques. Amendment to the regulation of the Notary Public after Decision of the Constitutional Court No. 49 / PUU-X / 2012 which abolished the MPD's authority in giving approval, has been replaced by MKN as stipulated in Article 66 paragraph (1) of the UUJNP. Inconsistencies that occur in Decision of the Constitutional Court No. 49 / PUU-X / 2012 and Decision of the Constitutional Court No. 22 / PUU-XVII / 2019 in the case of material testing of Article 66, due to differences in the Constitutional Court's considerations which resulted in differences in ruling on the previous Decree declared contrary to the 1945 Constitution whereas the most recent Decision was stated not to contradict the 1945 Constitution. The legal implications of the inconsistency have resulted in legal uncertainty and decreased public confidence in the judiciary. Putusan Mahkamah Konstitusi (MK) No. 49/PUU-X/2012 telah membatalkan frasa “dengan persetujuan Majelis Pengawas Daerah” Pada Pasal 66 ayat (1) Undang-Undang No. 30 Tahun 2004 tentang Jabatan Notaris (UUJN) mengakibatkan hilangnya kewenangan MPD yakni terkait pemberian persetujuan terkait proses peradilan oleh penyidik, penuntut umum, atau hakim. Namun dengan lahirnya Undang-Undang Nomor 2 Tahun 2014 tentang Perubahan Atas UUJN (UUJNP) kembali menghadirkan frasa yang pernah dibatalkan oleh putusan MK dengan nama badan yang berbeda yaitu “Majelis Kehormatan Notaris (MKN)” di pasal yang sama yang pernah dibatalkan oleh MK yakni Pasal 66 ayat (1). Kemudian pasal tersebut kembali menjadi pokok gugatan perkara untuk dimohonkan pengujian secara materiil di MK yang kemudian diputus dalam Putusan MK No. 22 /PUU-XVII/2019. Namun amar putusan MK ini memunculkan amar yang berbeda dengan putusan sebelumnya, yang menyatakan bahwa “Pasal 66 ayat (1) UUJNP tidak bertentangan dengan UUD 1945”. Adapun tujuan dari penulisan ini yakni untuk mengetahui perubahan peraturan jabatan Notaris pasca adanya Putusan MK No. 49/PUU-X/2012 dan untuk mengkaiji mengenai inkonsistensi Putusan MK terhadap pengujian materi pada Pasal 66 UUJN. Penelitian ini merupakan penelitian hukum normatif dengan menggunakan pendekatan undang-undang, pendekatan konseptual dan pendekatan kasus. Bahan hukum yang dianalisa berupa bahan hukum primer dan sekunder dengan teknik analisa deskriptif, komparatif, evaluative dan argumentatif. Perubahan pengaturan Notaris pasca Putusan MK No. 49/PUU-X/2012 yang menghapuskan kewenangan MPD dalam memberi persetujuan, telah digantikan oleh MKN yang tertuang dalam Pasal 66 ayat (1) UUJNP. Inkonsistensi yang terjadi dalam Putusan MK No. 49/PUU-X/2012 dan MK No. 22/PUU-XVII/2019 dalam hal pengujian materiil Pasal 66, disebabkan karena perbedaan pertimbangan MK yang mengakibatkan perbedaan amar pada Putusam sebelumnya dinyatakan bertentangan dengan UUD 1945 sedangkan pada Putusan terbaru dinyatakan tidak bertentangan dengan UUD 1945. Implikasi hukum akibat inkonsistensi tersebut mengakibatkan adanya ketidakpastian hukum dan menurunnya kepercayaan publik kepada peradilan.

scholarly journals Problematic Issues of Adversarial Construction of Judicial Proceedings at the Stage of Execution of the Sentence

2020 ◽  
Vol 15 (9) ◽  
pp. 93-103
Author(s):  
S. V. Burmagin
Keyword(s):  
Criminal Proceedings ◽  
Criminal Cases ◽  
Specific Subject ◽  
Judicial Proceedings ◽  
The Subject

An adversarial nature of any trial, characteristic of justice and corresponding to its nature, is manifested in criminal proceedings not only in criminal cases, but also in cases addressing issues related to the execution of the sentence. The paper examines the peculiarities of the adversarial construction of judicial proceedings at the stage of execution of the sentence pre-conditioned by the tasks and the specific subject of judicial proceedings in a particular category of cases. The author elucidates the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of procedural parties in cases where issues related to the execution of punishment are resolved. Also, the author analyzes the problems of ensuring equality of the parties and the undefined role of the prosecutor at the execution stage, suggests ways to address them at the legislative level. Finally, it is concluded that there is a need to improve the procedural form of dealing with issues related to the execution of sentences in accordance with the principles of adversarial proceedings and equality and taking into account the peculiarities of their manifestations in judicial proceedings arising during the execution of the sentence.

scholarly journals Judicial consequences in Spain for the completion of the medical death certificate

2021 ◽  
Author(s):  
Pilar Pinto Pastor ◽  
Enrique Dorado Fernández ◽  
Benjamín Herreros ◽  
Elena Albarrán Juan ◽  
Andrés Santiago-Sáez
Keyword(s):  
Cause Of Death ◽  
Death Certificate ◽  
Criminal Proceedings ◽  
Civil Proceedings ◽  
Legal Document ◽  
Judicial Proceedings ◽  
Administrative Proceedings ◽  
Legal Consequences

AbstractThe completion of the death certificate is indispensable in Spain for a death to be recorded in the civil registry. Occasionally, doctors may be reluctant to sign a death certificate due to possible legal consequences. This study seeks to analyse the possible judicial consequences doctors may face upon filling out this medico-legal document. Sentences published on the Judicial Power’s website between 2009 and 2019 containing the term “death certificate” were analysed. From a total of 2100 sentences examined, only 15 were found to contain the term “death certificate” as part of the claim. In only 7 of these cases the claim was made against the physician, and in 5 the physician was found guilty. Three of them concluded falsity via criminal proceedings, one via administrative proceedings for refusing to sign the certificate and one through civil proceedings for filling out an erroneous antecedent cause of death. In view of the above, it can be inferred that the completion of the death certificate poses few judicial consequences for physicians. In addition, this study reveals the importance of the death certificate document as evidence in judicial proceedings.

scholarly journals Significance of violations of the procedural criminal form, as a condition for the admission of evidence to be inadmissible

2019 ◽  
pp. 8-16
Author(s):  
V. Vapnyarchuk
Keyword(s):  
Scientific Literature ◽  
Scientific Development ◽  
Criminal Proceedings ◽  
Scientific Publications ◽  
Clear Cut ◽  
Physical Abilities ◽  
Legal Position ◽  
The Subject ◽  
Theory Of Evidence ◽  
Legal Consequences

The development of the science of the domestic criminal process necessitates the study and revision of traditional scientific views on particular problems of criminal procedural evidence. One of the most important in the theory of evidence is the problem of the admissibility of evidence, and in particular the question of the legal consequences of a breach of the procedural form of the taking of evidence (forming the evidentiary basis of the legal position of the subject of evidence) in criminal proceedings. In scientific publications, these issues are given considerable attention. However, there is no clear-cut approach to solving it. Therefore, expressing your own position on their decision is quite important and necessary. It is these circumstances that explain the need for this article, its logic and content. The purpose of the article is to investigate the legal consequences of violating the procedural form of taking evidence (forming the evidentiary basis of the legal position of the subject of proof) in criminal proceedings. The results of the scientific elaboration of the author of the aforementioned problem were the conclusions on different approaches to the question of the legal consequences of violation of the procedural form of obtaining evidence. In particular, the opinion, supported and additionally substantiated in the scientific literature, that they depend on the materiality of the violation. Substantial violations entail the admission of the evidence obtained inadmissible, although they can be overcome by the means specified by law. Non-essential violations after their neutralization do not affect the admissibility of the evidence. It is proposed to regulate the criminal procedural legislation of the Institute of Extreme need in criminal proceedings and scientific development of the procedure for its application. It`s indicated that when decidind on the abmissibility of evidence obtained by using coercion (which can be qualified as a non-substantial violation of the rights and freedoms of the person to which it is used), it`s necessary to establish: firstly: firstly, their character (surmountable or irresistible) (in this connection it is necessary to determine the degree of its impact on the person, its individual physical abilities, the mental state in which it was found, etc.); secondly, the possibility of using the Institute of Extreme Necessity (subject to its regulation in the criminal procedural legislation).

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