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

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.

ON EVIDENCE AND PROOF IN CIVIL PROCEDURE (IN MEMORY OF PROFESSOR M.K. TREUSHNIKOV)

Proof and evidence reflect the quintessence of civil procedure; this is the “litmus test”, which inevitably and clearly shows the effectiveness (or ineffectiveness) of basic principles, efficiency (or ineffectiveness) of the legislative paradigm of civil procedure, predictive function of science. It is no coincidence that the problems of proof and evidence-including in their traditional hypostasis-have always been the focus of attention of prominent domestic proceduralists, beginning in the 19th century. A pleiad of Russian pre-revolutionary scholars who turned their eyes to forensic evidence – E.V. Vaskovskii, A.Kh. Golmsten, K.I. Malyshev, E.A. Nefediev, B.V. Popov, – which is continued in the 20th century by S.N. Abramov, A.F. Kleinman, S.V. Kurylev, P.P. Gureev, L.P. Smyshliaev, Ia.L. Shtutin, and K.S. Iudelson (we do not aim to name all names) is brilliant. And not coincidentally, we believe, the problems of judicial proof and judicial evidence became the core of scientific research and achievements of Professor M.K. Treushnikov, who continued the best traditions of domestic jurisprudence and formulated the basis of the modern evidential paradigm in civil proceedings, which was legislatively reflected in the 2002 Civil Procedure Code of the Russian Federation.

Free Evaluation of Evidence: Does the icc need a Law of Evidence?

The International Criminal Court appears to have adopted a sui generis legal framework which favours the oldest features of both the common law and the continental law. Historically, the common law and continental legal systems have conceived questions of evidence and proof differently. Therefore, modes of judicial thinking are also different. The continental approach in the Bemba case freely evaluated the evidence. The common law approach evaluated the evidence against the burden of proof. Even though free evaluation may assist the truth-seeking mission of the Court on admissibility, the decision at the end of the trial requires rigorous evaluation only against the burden of proof. The common law of evidence provides a judicial thinking process for evaluating evidence, but free evaluation does not. This paper addresses whether the icc should develop its own evidence law to provide a route of rigorous judicial thinking when weighing evidence at the deliberation phase.

On the issue of evidence and proof in criminal proceedings

The article deals with the concept and essence of evidence in criminal cases. The correlation between the concepts of any information and actual data is analyzed in order to define the concept of evidence in criminal cases. The purpose of using evidence in criminal cases is justified. The article concludes that it is necessary to substantiate any procedural decisions with relevant, acceptable and reliable evidence.

Argumentation and Evidence

This chapter underscores the centrality of argumentation to legal and evidential reasoning: the prosecution argues that the suspect committed the crime; attorneys present their arguments; the plaintiff argues his case by citing a relevant precedent; the court presents concurring and dissenting arguments; and so on. The author reviews the different accounts of argumentation developed in the academic literature and then relates those accounts to the context of evidence and proof. Specifically, he focuses on the construction of arguments and counterarguments as involving consecutive reasoning steps, starting with identifying an item of evidence and then reasoning towards some conclusion with the help of general rules of inference and generalizations.

Cost-Benefit Analysis of Evidence Law and Factfinding

Utility considerations have been central to legal factfinding, at least since the days of Jeremy Bentham, the founding father of utilitarianism and a prominent evidence law theorist. A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning. However, when legal scholarship began to incorporate economic reasoning and to address issues from a CBA perspective, evidence law and the practice of judicial factfinding remained very much out of the picture. The object of this chapter is to highlight the prospects for integrating CBA into contemporary evidentiary policy and institutions, and to draw the general contours of the evolving scholarship in these fields of research. It describes and analyzes two economically driven models of evidence and proof: the cost-minimization model, geared toward minimization of the cost of errors and the cost of accuracy as a total sum, and the primary behavior model aiming to incentivize socially optimal behavior and interactions. This analysis identifies the models’ difficulties, engendered, for the most part, by the misalignment between the private and the social costs and benefits of adjudication, and addresses the models’ relationship to the existing evidentiary rules and institutions.

Introduction

This introductory chapter introduces James Long, an Anglo-Irish missionary who was active in schoolbook production and fascinated by Bengali literature, who published A Catalogue of Bengali Newspapers and Periodicals from 1818 to 1855. As the author of this text, he was in a good position to argue, two years later, that had the British paid more heed to the discontent on view in Indian periodicals, they might have prevented the 1857 Rebellion. With such argument, the chapter unveils the impact of the 1857 Rebellion into the Press and Registration of Books Act of 1867, an official acknowledgment of the power of the Indian press, and how it metastasized into a full-fledged culture of surveillance. It investigates how politics and affect became “officially” (legally) coupled at a crucial historical juncture, and the wide-ranging effects of this coupling on politics, literary culture, and ideas of criticism. The chapter also focuses on what British administrators thought Indian affect was, how they sought to control it and the effects this had on print culture and the colonial public sphere. For this reason, the chapter uses the words “affect” and “emotion” interchangeably, reflecting the way they were used in colonial courtrooms, as prosecutors sought to find evidence and proof of disaffection. Ultimately, it analyses the way censorship influenced conceptions of the public sphere and of the politics of empire.