ON COGNITION AND PROVING IN CASES OF NON-CONTENTIOUS JURISDICTION

The article analyzes the general theory of judicial knowledge and proof, its capabilities and implementation in the consideration and resolution of cases of special proceedings in civil, arbitration, administrative proceedings. The approaches to cognitive and evidentiary activities in controversial (claim) and indisputable (special) proceedings are compared. The author considers the original system of collecting, presenting and evaluating evidences, created in the field of voluntary jurisdiction in the countries of civil law, its advantages and disadvantages in comparison with the national tradition of the unity of legal regulation of judicial knowledge and proof. An overview of the current state of the doctrine and practice of proving in special proceedings is given, an opinion is expressed about the need to refine the general provisions on proving in special proceedings. The prospects for the normative establishment of the limits of judicial research in terms of the volume of facts and the depth of their knowledge are outlined. It is stated that in cases of special proceedings, the “standard of proof” has always been higher in comparison with cases of claim proceedings. A number of new rules for establishing the circumstances of cases and proving are proposed: the priority of direct personal perception of the judge in the cognition of facts that are important for the case before proving them; freedom of means of evidence – the ability to use information about the circumstances of the case without restrictions on its sources (means of proof); freedom in choosing the rules for extracting information from a source (means of proof); different regulation of the burden of confirmation and the burden of proof.

Onus and Quantum of Proof for Breaching the Standard of Procedure during the Movement Control Order

The objective of this research paper is to highlight on the issues relating to the onus and quantum of proof for breaching the standard of procedure (SOP) during the movement control order (MCO) due to Pandemic Covid 19 in Malaysia. In tackling the issues, the research methodology applied by the author is by analysing and evaluating some decided cases, studying the substantive laws, regulations, and procedure in enforcing movement control order. The contemporary legal issues in this article are on whom the onus (burden) of proof lies and what is the quantum (standard) of proof required for the offence of breaching social distancing during the movement control order, be it conditional, restricted or recovery. The standard of procedure always changing based on the types of movement control order made by the Federal Government. In the New Straits Times dated 4 April 2021, it was reported that 17 publics were compounded for not practicing social distancing. Many questions raise as what is the real meaning of social distancing? In which type of offence, the social distancing offence lies on? What are the elements that will constitute the offence? As to the remedies, the author has submitted the nature of the offence for breaching the SOP during MCO. The expectation result of this paper is to give a clear picture as to the matter of standard of proof and burden of proof that to be considered by the trial court in deciding the issue of breaching SOP. The significance of this paper is to point out some contemporary identical legal issues relating to SOP during MCO. The issues will be highlighted in this article.

Moore against the sceptics

Moore’s “Proof of an external world” and his “Four forms of scepticism” have long puzzled commentators. How are these adequate responses to sceptics? How, for that matter, is the so-called proof of an external world even pertinent to the challenge of scepticism? The notion of relativized burdens of proof is introduced: this is a burden of proof vis-à-vis one’s opponent that one takes on when trying to convince that someone of something. The relativized burden of proof is a making explicit (in the topic of rational discourse) the truism that if you argue with someone with the intent of trying to convince that someone of something, and if you fail to, you have not met your own conversational goal. Assuming Moore is implicitly relying on the notion of relativized burdens of proof illuminates his approach in these papers.

ESTABLISHMENT OF THE FACTUAL CAUSATION IN TORT

The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.

Burden of Proof in Judicial Review Proceedings of Competition Administrative Decisions

Solar Panel

Child-centred pandemic decisions: how the Precautionary Principle can generate better risk assessment in an era of uncertainty

Key messagesRisk assessment for children has been a polarising issue during the Covid-19 pandemic. Governments around the world are preparing to ‘open up’ before risks to children are fully quantified, with unknown implications for their long-term health.Applying the Precautionary Principle to child health requires decision makers to 1) take preventive action until risks are better understood; 2) ensure that the burden of proof rests with proponents of risk; 3) explore alternatives to the risk; and 4) use participatory approaches to decision-making.Policies relating to children must be centred on the rights and wellbeing of children. We provide a framework for comprehensive Health Impact Assessments to ensure that direct and indirect impacts upon children are taken into account in major policy decisions.Elimination strategies offer an integrated approach to the protection of children’s wellbeing, the wellbeing of the population as a whole, and health equity. Where countries are transitioning away from elimination, a tight suppression approach is preferable to loose suppression or mitigation.

‘Platformisation’ of Work: An EU Perspective on Introducing a Legal Presumption

For some time now, the European Commission has stressed the need to address the ongoing misclassification of employment status in platform work and has thus considered introducing a rebuttable presumption of employment status or a reversal of the burden of proof. This contribution focuses on the benefits and limitations of introducing a rebuttable legal presumption in EU labour law as an evidentiary means to improve the working conditions of platform workers. In doing so, some general remarks on rebuttable legal presumptions will be made, while also offering some comparative legal insights, before exploring their potential benefits and limitations in the context of EU labour law in general and platform work in particular. This contribution will finish with an analysis of how such a presumption could be integrated in the current EU social acquis.

Ethnocultural Neutrality and Nation-Building: A Critical Evaluation of Will Kymlicka's Fairness Based Argument for Minority Cultural Rights

<p>This thesis looks at an argument by Will Kymlicka in which he claims that the idea of an ethnoculturally neutral state is "manifestly false" and should be replaced by liberal political theorists with a model of the state as engaging in "nation-building" (Kymlicka 2001 pp23 - 27). Once we do this, Kymlicka argues, we see that the burden of proof regarding minority cultural rights has shifted away from the defender of such rights and falls equally on those who seek to deny those rights. We see this, Kymlicka claims, because the nation-building model of the state highlights a number of burdens that are placed on cultural minorities, burdens which are otherwise disguised by a norm of ethnocultural neutrality. Kymlicka argues that this means that the debate over minority cultural rights has moved on from substantive debates about the worth of cultural units (including his well known argument that we have a fundamental interest in the success of our own culture). In this thesis I argue for two main claims. The first is that the idea of ethnocultural neutrality is not manifestly false so long as it is understood as part of a requirement that state institutions and policies should be capable of an appropriate justification. Moreover I shall suggest that acceptance of such a norm can in fact be used by Kymlicka in order to ground the specific fairness based claims that he wants to make about majority nation-building in liberal democratic states. Secondly I shall argue that Kymlicka's claims about the fairness of majority nation-building rely upon the kind of substantive account supplied by his earlier argument that we have a fundamental, autonomy based, interest in the survival of our own societal-culture. In this respect, then, Kymlicka is wrong to suggest that the debate has moved on. My defence of ethnocultural neutrality helps us to see where there is underlying agreement amongst liberals on a number of multicultural policies and also highlights the areas of substantive disagreement which, I shall suggest, do not revolve around acceptance, or not, of a norm of ethnocultural neutrality but instead are deep rooted disagreements about the worth of our cultural and national attachments and how they are to be weighed against each other and against other interests that we have. On this score I suggest that Kymlicka's own autonomy argument is unconvincing.</p>

Ethnocultural Neutrality and Nation-Building: A Critical Evaluation of Will Kymlicka's Fairness Based Argument for Minority Cultural Rights

<p>This thesis looks at an argument by Will Kymlicka in which he claims that the idea of an ethnoculturally neutral state is "manifestly false" and should be replaced by liberal political theorists with a model of the state as engaging in "nation-building" (Kymlicka 2001 pp23 - 27). Once we do this, Kymlicka argues, we see that the burden of proof regarding minority cultural rights has shifted away from the defender of such rights and falls equally on those who seek to deny those rights. We see this, Kymlicka claims, because the nation-building model of the state highlights a number of burdens that are placed on cultural minorities, burdens which are otherwise disguised by a norm of ethnocultural neutrality. Kymlicka argues that this means that the debate over minority cultural rights has moved on from substantive debates about the worth of cultural units (including his well known argument that we have a fundamental interest in the success of our own culture). In this thesis I argue for two main claims. The first is that the idea of ethnocultural neutrality is not manifestly false so long as it is understood as part of a requirement that state institutions and policies should be capable of an appropriate justification. Moreover I shall suggest that acceptance of such a norm can in fact be used by Kymlicka in order to ground the specific fairness based claims that he wants to make about majority nation-building in liberal democratic states. Secondly I shall argue that Kymlicka's claims about the fairness of majority nation-building rely upon the kind of substantive account supplied by his earlier argument that we have a fundamental, autonomy based, interest in the survival of our own societal-culture. In this respect, then, Kymlicka is wrong to suggest that the debate has moved on. My defence of ethnocultural neutrality helps us to see where there is underlying agreement amongst liberals on a number of multicultural policies and also highlights the areas of substantive disagreement which, I shall suggest, do not revolve around acceptance, or not, of a norm of ethnocultural neutrality but instead are deep rooted disagreements about the worth of our cultural and national attachments and how they are to be weighed against each other and against other interests that we have. On this score I suggest that Kymlicka's own autonomy argument is unconvincing.</p>

Understanding the anatomy of a malpractice suit. In the United States this is a doctor’s best defence

In the United States, the majority of physicians have been sued and those who have not, will be. Defendants share the notion that the lawsuit is totally fallacious. To be fallacious, the outcome of a medical intervention must be an unpreventable random maloccurrence. This is the only alternative to a medical error. The conflict over outcomes that are random and outcomes that are medical errors results in 46,000 malpractice suits every year in the USA. The burden of proof is a preponderance of evidence, but this is insufficient to do more than just infer, not prove, a relationship between the medical intervention and the outcome. Plaintiffs, generally, prove a malpractice case using inductive reasoning. Inductive reasoning leaves much to intuition. They use inductive reasoning because, by definition, preponderance of evidence, also, leaves much to intuition. Deductive reasoning is objective and there is no place for intuition. With deductive reasoning, the burden of proof is now sufficient to distinguish whether or not the cause relates to the effect with 95% confidence. A model for deductive reasoning in malpractice which is completely consistent with the scientific method is presented. This should and would derail frivolous lawsuits.