Evidence of the opinion of the scientific institute (article 290 of the code of civil procedure) in the light of judicial case-law – selected issues

2019 ◽  
Vol specjalny (XIX) ◽  
pp. 139-154
Author(s):  
Aleksandra Partyk
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Dominant Position ◽  
Staff Members ◽  
Expert Opinions ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Special Knowledge ◽  
Research Institute

Evidence of the scientific or research institute’s opinion shall be provided in civil proceedings when there is a need to obtain special knowledge of the highest standard. Judicial case-law indicates that it may be useful to instruct the institute to give an opinion if the expert opinions drawn up on the matter are inadequate or contradictory. According to the choice of the jurisprudence cited in the article, the opinion of the institute is issued by at least two staff members of this research institute, and the conclusions expressed in the report should reflect the dominant position of the institute. In this context, particular attention is paid in judicial practice to the need for the scientific institute to justify its opinion in an accessible and comprehensible manner so that it can be assessed by persons who do not have special knowledge. The study also presents the jurisprudence views related to the evidentiary force of the institute’s opinion

scholarly journals Zarzut potrącenia jako podstawa powództwa opozycyjnego po zmianach wprowadzonych na mocy ustawy z dnia 4 lipca 2019 r. o zmianie ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw (Dz.U. 2019, poz. 1469)

2020 ◽  
Vol 29 ◽  
pp. 198-212
Author(s):  
Andrzej Olaś ◽  
Keyword(s):  
Civil Procedure ◽  
Practical Application ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Theoretical Assumptions

This article discusses the issue of the set-off defense as the basis for an action to limit or cancel the enforceability of an enforceable title after amendments as provided for pursuant to the Act of 4 July 2019 amending the Act – Code of Civil Procedure and some other acts. The purpose of the article is to indicate the basic interpretative issues emerging from the regulations contained in the Article 840 § 1 item 2 of the Code of Civil Procedure which are likely to pose major problems in its practical application and to offer some reasoned proposals for their solution in a manner consistent with theoretical assumptions and at the same time as useful as possible for judicial practice in the civil proceedings.

THE STANDARD OF PROOF UNDER LITHUANIAN AND RUSSIAN CIVIL PROCEDURE LAW: A COMPARATIVE ANALYSIS

2021 ◽  
Vol 11 (5) ◽  
pp. 242-259
Author(s):  
V. MIKELENAS
Keyword(s):  
Main Part ◽  
Comparative Method ◽  
Case Law ◽  
Civil Procedure ◽  
Main Field ◽  
Legal Doctrine ◽  
Standard Of Proof ◽  
Civil Proceedings ◽  
Evidence And Proof ◽  
System Operating

The article is dedicated to the memory of Professor M.K. Treushnikov. The professor was the head of the candidate of law thesis of the author of the article, therefore, the beginning of the article is devoted to the author’s memories of M.K. Treushnikov. Since the main field of scientific research of M.K. Treushnikov is related to evidence and proof in civil proceedings, the main part of the article is devoted to the issues of the standard of proof. On the basis of the comparative method the author analyses how the approach to the standard of proof in Lithuania and Russia changed after 1990, both in legal doctrine and case law. It is concluded that there are many similarities in the standard of proof between Lithuanian and Russian civil procedure law, but there are also differences, which are due both to different legal doctrine approaches to this issue and to different case law. In particular, the author points out that there must be common standards for such cognitive, logical activity, which exist regardless of the legal system operating in one state or another, for there is only one logic.

scholarly journals LEGAL CERTAINTY AS AN EVALUATIVE CATEGORY IN CIVIL PROCEEDINGS

2020 ◽  
pp. 3-7
Author(s):  
M.A. Bolovnev ◽  
I.V. Rekhtina
Keyword(s):  
Law Enforcement ◽  
Civil Procedure ◽  
Judicial Discretion ◽  
Legal Certainty ◽  
Legal Proceedings ◽  
Effective Implementation ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Subsequent Application ◽  
Judicial Protection

The article explores the effect of the legal certainty of civil procedure legislation and its application onthe creation of appropriate conditions for the effective implementation of justice. It is stressed that the lack of legal certainty, namely, its opposite — legal “uncertainty,” creates both legislative conflicts and, even moresignificantly, law enforcement problems, which significantly reduce the accessibility of justice to personsin need of judicial protection. The courts used different procedural rules, using a formalistic approach,jeopardizing the delivery of a lawful and justified judicial act. In order to overcome the state of legaluncertainty and, as a result, to improve the efficiency of legal proceedings, it is necessary to use techniquesof legal technique that do not lead to the emergence of causal rules of law. The model of the most generalrules is capable of being applicable to any emerging procedural situation, taking into account systemic andtargeted modes of interpretation. It is this approach to the construction of the system of legislation, togetherwith the subsequent application of the rules on the basis of internal conviction and judicial discretion, thatwill ensure the unity of judicial practice.

scholarly journals UNREASONABLE AS A BASIS FOR CHANGING OR CANCELING A JUDICIAL NOT ENDED IN LEGAL FORCE

2020 ◽  
Vol 35 (3) ◽  
pp. 111-116
Author(s):  
N.M. Kostrova ◽  
◽  
N.Sh. Gadzhialieva ◽  
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
Judicial Decision ◽  
Judicial Decisions ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Practical Research ◽  
The Russian Federation ◽  
Points Of View ◽  
Legal Force

The article analyzes the content of the concept of groundlessness of a judicial act in the context of the grounds for canceling and changing judicial decisions that have not entered into legal force in civil proceedings. Based on the analysis of normative sources, the author reveals the content of the validity of the judicial act in conjunction with proving the circumstances necessary for the adoption of a particular procedural decision. After analyzing the points of view of various scientists, the author shows the presence of various approaches in determining the unfoundedness of a judicial act, shows his vision of the issue under study. Attention is drawn to the fact that the degree of validity of the judicial act depends on a combination of certain factors and circumstances that are disclosed by the author based on judicial practice. In conclusion, the author reveals what elements make up the content of the concept of unfoundedness of a judicial act, concludes that the unfoundedness of a judicial decision as a legal category needs further comprehensive scientific and practical research. The author proposes to correct the list of grounds for cancellation, formulated in Part 1 of Art. 330 of the Code of Civil Procedure of the Russian Federation in order to improve the procedural mechanism for revising judicial acts.

SPECIAL KNOWLEDGE IN CIVIL PROCEEDINGS: THE HISTORY OF THE ISSUE

2021 ◽  
Vol 10 (6) ◽  
pp. 114-136
Author(s):  
A.V. VERESHCHAGINA
Keyword(s):  
Soviet Period ◽  
Main Role ◽  
Judicial Practice ◽  
15Th Century ◽  
Civil Proceedings ◽  
The Status ◽  
History Of ◽  
Special Knowledge ◽  
The 19Th Century

The article deals with the formation and development of the Institute of special knowledge in civil procedure until 1917. In the development of the Institute of special knowledge in the pre-Soviet period, there are three stages: Zemsky (9th to the end of 15th century.); Moscow (16th–17th century.) and Imperial (18th – early 20th century). The use of special knowledge originated with the appearance of the proceedings. Initially, special knowledge was used primarily to resolve civil disputes. The transformation of the Institute was influenced by judicial practice and the development of special knowledge. The model of the institute of special knowledge in civil proceedings developed by the second half of the 19th century. It included the concept of special knowledge, the status of a specialist (expert), the procedure for some research and some forensic preventive rules. The most important provisions of the pre-revolutionary Institute, distinguishing it from the existing modern model, are: 1) the identity of the status of holders of special knowledge involved in dispute resolution; 2) the main role of the court in the appointment of examination (research) and the appointment of experts from among persons who have the legal right to engage in expert activities. The reception of these provisions could streamline enforcement.

scholarly journals The Applicability of the Right to a Fair Trial in Civil Proceedings: The Experience in Ukraine

2021 ◽  
Vol 4 (1) ◽  
pp. 199-222
Keyword(s):  
Case Law ◽  
Fair Trial ◽  
Protection Measures ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Legal Nature ◽  
Positive Duties ◽  
Judicial Procedures ◽  
The Right ◽  
Substantive Law

In this note, the author attempts to prove that the right to a fair trial is essentially a substantive right; that is, a right that combines the manifestations of a fundamental right. At the same time, this right imposes some positive duties on the State to provide for it. It has national and supranational regulations, and at the same time reflects subjective law and axioms, as well as elements of procedural and substantive law. Attention is drawn to the fact that in Ukraine the legal nature of this right is implemented only partially, since neither legislation nor judicial practice recognize it as an independent object of protection. Taking into account the provisions of Para 1, Art. 6 of the ECHRs and the case law of the ECtHR , the research proposes to define the scope of the applicability of the right to a fair trial proceeding from: (1) legally bound subjects, which may include not only courts within the judicial system of the country concerned on the basis of the law, but also other jurisdictional and quasi-judicial bodies; and (2) the procedures in which the guarantees of a fair trial must be observed. Depending on the existence or absence of a dispute over the rights in them the latter is divided into ‘disputed’, ‘conditionally disputed’ or ‘indisputable’. It is proved that the requirements of Art. 6, Para 1 of the ECHR do not apply to them, but that they are mandatory under the first two procedures. An attempt to analyse the recent positions of the ECtHR on the possibility of including protection measures in the scope of the application is made. Also, the author determines which of those protection measures provided in national law falls within the scope of this regulation. Furthermore, the author draws attention to the fact that the rights and duties to protect a person who is invoked must be ‘civil in nature’ in order to be covered by the guarantees of a fair trial. On the basis of certain criteria the author identifies procedures in the national legal system within which the right to a fair trial must be guaranteed. Keywords: a right to a fair trial, substantive law, scope of applicability of the fair trial right, court, established by law, judicial procedures, legal dispute, diversification of judicial procedures, ‘civilistic’ rights and duties.

Features of the Use of Computer-Technical Expertise in Order to Provide an Evidence Base in Criminal Proceedings

2021 ◽  
pp. 71-76
Author(s):  
O. D. Ratnikova ◽  
V. V. Kharin ◽  
O. S. Matorina
Keyword(s):  
Information Technologies ◽  
Evidence Base ◽  
Innocent Person ◽  
Technical Expertise ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Expert Opinions ◽  
Judicial Practice ◽  
Special Knowledge ◽  
Modern Information

The process of investigating crimes committed with the use of modern information technologies is inherently connected with the need to attract specialists from expert organizations with special knowledge and qualifications. In order to form an evidence base in the criminal proceedings of the area under consideration and a comprehensive review of cases, the conclusion of a specialist conducting computer-technical expertise is significant. The scientifically based conclusions of the expert opinion allow us to fully restore the logical chain of circumstances and establish the mechanism of committing a crime, as well as to prove the fact of committing a criminal act, or to justify an innocent person in committing a crime. The relevance of the topic of the article is due to the growth of crimes with the use of modern information technologies. Based on the results of the theoretical analysis and study of judicial practice in criminal cases related to the use of information technologies, the authors consider the features of the investigation of cases and the significance of the results of expert opinions in sentencing. The features of the use of computer-technical expertise in order to provide an evidence base in criminal proceedings are determined.

IN NOVUM RESTRICTION IN LITHUANIAN CIVIL PROCEDURE LAW

2021 ◽  
Vol 11 (5) ◽  
pp. 260-275
Author(s):  
V. NEKROŠIUS
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Daily Work ◽  
Civil Proceedings ◽  
Long Time ◽  
The Law ◽  
The Republic ◽  
Grand Duchy Of Lithuania ◽  
The Right ◽  
Court Of First Instance

This article examines a relatively new institute of Lithuanian civil proceedings – legal restrictions on the late submission of evidence in both first instance and appellate courts. These restrictions were first established in the new Civil Procedure Code (CPC) which was adopted by Seimas of the Republic of Lithuania on 28 February 2002 (entered into force on 1 January 2003). Until then such restrictions in Lithuanian civil procedure law were not known from the time of famous Statutes of the Grand Duchy of Lithuania. Therefore, it seems natural that this innovation has paved the way for its real application in the courts for more than a decade. This article provides a consistent analysis of the case law (starting with the rulings of the Supreme Court of Lithuania in which the restrictions established in the law were practically denied, and up to the rulings of the last year, which already recognized the right of the courts in certain cases to refuse to accept evidence which was submitted too late). This article also reveals the aims of the CPC authors which were aimed at establishing the first instance court’s right to refuse to accept evidence which was submitted too late and system of limited appeal which establishes a general prohibition (with certain exceptions) to present evidence that was not examined in the court of first instance. One of the most important aims is the concentration of the proceedings, the prevention of abuse of procedural rights and the establishment of the first instance as the main judicial instance. The appeal procedure in the new CPC is already regarded not as a repetition or continuation of the proceedings at first instance, but as a review of the legality and validity of an existing, albeit unenforced, decision of the court of first instance. The author acknowledges that although it took a long time for the relevant provisions of the law to be actually applied in the case law, today their application is already noticeable in the daily work of courts. This leads to the conclusion that Lithuanian courts have adapted to the new CPC system and its philosophy.

scholarly journals The Admissibility of an Audio Recording in Lithuanian Civil Procedure and Arbitration

Teisė ◽  
2021 ◽  
Vol 120 ◽  
pp. 36-48
Author(s):  
Jurgis Bartkus
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Civil Procedure ◽  
Audio Recording ◽  
Legal Doctrine ◽  
Civil Proceedings ◽  
Audio Recordings ◽  
The Supreme Court ◽  
Per Se ◽  
The Republic

This article analyzes the issues related to the admissibility of audio recordings in Lithuanian civil proceedings and arbitration. The study critically evaluates the statutory law, case law and legal doctrine related to the admissibility of audio recordings. The study reveals that the case law of the Supreme Court of the Republic of Lithuania on the admissibility of audio recordings has to be improved on the application of the criteria of admissibility of audio recordings and on the protection of privacy. Meanwhile in Lithuanian arbitration law, it is suggested to waive the arbitration court’s discretion to decide on the possible approaches to the admissibility of an illegally made audio recording and to follow the view that an illegally made audio recording is per se inadmissible.

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