THE APPLICATION OF THE DYNAMIC THEORY OF THE BURDEN OF PROOF IN CIVIL MATTER AFTER THE VALIDITY OF THE CODE OF CIVIL PROCEDURE OF 2015: AN ANALYSIS OF DECISIONS

ABSTRACT Objective: The objective of this paper is primarily to analyze how the dynamic distribution of the burden of proof was inserted in the Brazilian Civil Procedural law to rule specific situations of the civil jurisdiction. An analysis of the organization of the theme by the legislator of the Brazilian Civil Code of Procedure of 2015 in order to extend the probationary dynamic to all civil matters was made, as well as the roles of the burden of proof in the Brazilian law, as well as if the traditional rule of distribution of the burden of proof can coexist with the dynamic rule. Methodology: The methodology used is based on bibliographic and legislation research, as well as on doctrine, jurisprudence and articles published in specialized journals. Results: It was concluded that the express adoption of the theory of the dynamic distribution of the burden of proof by the legislator of the Brazilian Civil Code of Procedure of 2015 was salutary, because it offered the security needed to solve the problem of the production of the evidence in order to obtain an equitable decision. Although part of the legal literature and the vanguard jurisprudence of the Superior Court of Justice already defended its application in cases that it was impossible or very hard to one of the parties to prove the alleged fact in lato sensu civil actions, the establishment of the rule in the Code stimulates – or better, obligates – the judges to rethink about the way that the probationary charges are defined in the proceeding. The Brazilian Civl Code of Procedure of 2015 granted a new nature to the Brazilian civil procedure given that it encourages the cooperation between the plaintiff, the defendant and the judge and compels this one to act incisively to reach a fair and equality decision. For this reason, the dynamic distribution of the burden of proof is a product of the concern of the legislator with the most fragile part of the process, following the example of the consumerist legislation valid since the 1990’s. Contribution: The main contribution of this study relates to the discussion of the inversion of the burden of proof brought by the Brazilian Code of Procedure of 2015. Keywords: Burden of proof; civil procedure; probation dynamics; theory of dynamic distribution of burden of proof; equitative decision. RESUMO Objetivo: O objetivo deste artigo é analisar principalmente como a distribuição dinâmica do ônus da prova foi inserida na legislação processual brasileira para regular situações específicas da jurisdição civil. Foi feita uma análise da organização do tema pelo legislador do Código de Processo Civil brasileiro de 2015, a fim de estender a dinâmica probatória a todas as questões civis, bem como os papéis do ônus da prova na lei brasileira, bem como se a regra tradicional de distribuição do ônus da prova pode coexistir com a regra dinâmica. Metodologia: A metodologia utilizada é baseada em pesquisas bibliográficas e legislativas, bem como em doutrina, jurisprudência e artigos publicados em periódicos especializados. Resultados: Concluiu-se que a adoção expressa da teoria da distribuição dinâmica do ônus da prova pelo legislador do Código de Processo Civil brasileiro de 2015 foi salutar, pois ofereceu a segurança necessária para resolver o problema da produção de provas a fim de obter uma decisão equitativa. Embora parte da literatura jurídica e da jurisprudência de vanguarda do Superior Tribunal de Justiça já defendesse sua aplicação nos casos em que era impossível ou muito difícil para uma das partes provar o suposto fato em ações civis lato sensu, o estabelecimento da regra no Código estimula - ou melhor, obriga - os juízes a repensar sobre a maneira como a obrigação das provas são definidas no processo. O Código de Processo Civil de 2015 concedeu uma nova natureza ao processo civil brasileiro, uma vez que incentiva a cooperação entre o autor, o réu e o juiz e o obriga a agir incisivamente para alcançar uma decisão justa e equitativa. Por esse motivo, a distribuição dinâmica do ônus da prova é um produto da preocupação do legislador com a parte mais frágil do processo, seguindo o exemplo da legislação consumerista válida desde os anos 90. Contribuições: A principal contribuição deste estudo refere-se à discussão da inversão do ônus da prova trazida pelo Código de Procedimento Brasileiro de 2015, Palavras-chave: Ônus da prova, processo civil; dinâmica probatória; teoria da distribuição dinâmica do ônus da prova; decisão equitativa.

The self-represented litigants’ challenge: A case study

Self-represented litigants face significant challenges, and pose difficulties to both other parties and the judicial system as a whole. This article briefly sets out the background of challenges posed by self-represented litigants, before turning to discussion of common suggestions to tackle these challenges. This discussion is with reference to a ‘case study’ of a recent SA District Court civil matter, wherein all parties were self-represented.

Conveniencia de actualizar y refundir el párrafo segundo del artículo 281 LEC

Planteo en este trabajo la necesidad de reformar y refundir el vigente artículo 281-2 LEC proponiendo una regulación en dicha norma que distinga en dos o más preceptos la prueba de los hechos y la prueba del derecho. La excusa debería ser la necesidad de adecuar y refundir la vigente LEC a la reciente Ley de Cooperación Jurídica Internacional en materia civil, respecto al derecho extranjero. Asimismo regular otros supuestos en que puede ser exigible la prueba del derecho que quedan fuera del derecho extranjero y la costumbre. Todo ello tratando de integrar las muchas lagunas de las que apriorísticamente adolece la prueba, aplicación e impugnación del derecho aplicado. Y a ser posible siguiendo una sistemática general en todos los supuestos de prueba del derecho.I raise in this work the need to reform and recast in force article 281-2 LEC proposing a regulation in the above mentioned norm that distinguishes in two or more precepts the evidence of the facts and the evidence of the law. The excuse should be the need to adapt and recast in force LEC to the recent Law on International Legal Cooperation in civil matter, with regard to the foreign law. Likewise to regulate other assumptions in which it may have to be met the evidence of the law that they stay out of the foreign law and the custom. All this trying to integrate many gaps from which deductively there suffers from the evidence, application and challenge of the applied law. And to being possible being still a systematic general in all the assumptions of evidence of the law.

Part I General and Introductory, 4 Subject-Matter Scope: Civil and Commercial Matters

This chapter discusses the ‘subject-matter scope’ of Brussels 2012, Lugano 2007, and the Hague Convention. ‘Subject-matter scope’ refers to the scope covered by a measure as regards its subject matter, that is to say the branches and areas of the law to which it applies. For the three legal instruments under consideration, the relevant provisions are contained in Article 1 of Brussels 2012 and Lugano, and Articles 1 and 2 of Hague. A review of case law shows that the distinction between a civil matter and public matter is far from straightforward. There is a significant grey area in which the Court of Justice of the European Union could legitimately go either way.

A Craze for This Sort of Thing

The campaign of abusive letters led to a successful private prosecution of Rose Gooding by Edith Swan. This chapter explains the legal context of the Littlehampton case, discussing access to justice and the nature of criminal libel. Libel could graduate from a civil matter to a criminal one if public order was involved in some way, even figurative: if the libel touched on ‘infamous’ matters (such as homosexuality); if the libel undermined confidence in public institutions such as the police or the judiciary; or if it was repetitive, part of a harassment campaign that disturbed ‘the peace and harmony of the community’. The practice, and even much of the theory, of this now defunct offence must be pieced together from unreported cases, and the account in this chapter is based on an extensive sample of unpublished case files.

ZWALCZANIE OPÓŹNIEŃ W PŁATNOŚCIACH W TRANSAKCJACH HANDLOWYCH W ŚWIETLE DYREKTYWY 2000/35/WE I PRAWA POLSKIEGO

Combating Late Payment in Commercial Transactions in the Light of the Directive 2000/35/EC and in the Polish LawSummaryThe European Community has recognized late payments as one of important obstacles to a good functioning of the internal market. The preparatory works of the EC in this field prove that a long way has been come from the European Parliament’s initiative to the directive 2000/35/E C of the European Parliament and the Council dated 29 June 2000 on combating late payment in commercial transactions. A rather limited scope of the directive is a result of extensive modifications introduced by the Council to the initial proposals. The directive concentrates on the interests in case of late payment, reasonable compensation for recovery costs, retention of title and recovery procedures for unchallenged claims. The above study presents the substance of the directive and its transposition rules.The first attempt to implement the EC directive in Poland was the law of 6 September 2001. As it was not satisfactory, a new law on payment terms in commercial transactions was issued on 12 June 2003. It will enter into force on 1 January 2004. This new law is limited to interests and procedural aspects. The above study presents the results of the directive’s transposition within this law. The act of law from 2003 certainly sets new limits on the freedom of contracts, but it is an interesting and rare example of a protection of weaker parts to the contract, which are not consumers, but enterprises. W hat should be reproached is that a typical civil matter is regulated in an act of law separate from the Polish Civil Code. A breach of the rule of the integrity of the Polish Civil Code is again a price for the fast implementation of the EC law in Poland.

THE PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEED-INGS AS A GUARANTEE OF ENSURING THE EFFECTIVENESS OF LEGAL PROTECTION. SOME REMARKS

The role of the prosecutor in the legal system is traditionally perceived in the context of performing tasks relating to the prosecution of offences and upholding the rule of law. It is worth mentioning, however, that pursuant to Article 7 sentence 1 of the Code of Civil Procedure the prosecutor may petition to institute proceedings in any civil matter as well as participate in any pending proceedings if he considers his presence necessary to protect the rule of law, citizens’ rights or social interest. While the broad competence range of the prosecutor in civil proceedings has been assessed with high criticism in the literature on numerous occasions, it is with great caution that one should view possible tendencies towards exclusion of the prosecutor as an attendant of proceedings, without affiliation to either party, when the public interest calls for their participation. Especially in the cases where the court notifies the prosecutor of the need to participate in proceedings, one ought to conclude that it is the moment when the principle of effective legal protection becomes most fully realized through equalizing the litigious position of the parties and prevention of the occurrence of a defect which might invalidate the proceedings. The author postulates transforming notification of the need to participate in proceedings served on the prosecutor into summons for attending it.

Active Promotion of Useful Arts

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the decision to grant a patent. Some view patent rights as a form of monopoly, termed a “patent monopoly.” Because early Americans had strong anti-monopoly sentiments, their decision to institute a system that would allow for a patent monopoly demonstrates a recognition of the importance of furthering collective knowledge. However, a patent can be essentially worthless if its owner is unable to enforce it. While a patent confers the right to exclude others from making, using, or selling whatever the patent claims, this right has been restated by some to actually be more akin to “a right to try to exclude” others. One reason is that the right to exclude can only be exercised on the condition that the patent owner also has the financial means to exclude. There is no criminal penalty for patent infringement. Instead, patent infringement is strictly a civil matter and patent owners are responsible for the costs associated with enforcement. Thus, if a patent owner is unable to afford the cost of litigation, the right to exclude might as well not exist.

Kritik Terhadap Epistemologi Fikih Murtad.

This paper contains a critique to fiqh of apostasy which considers the action as a criminal offense to be sentenced to death. Reviewing the legal sources of fiqh using allegorical approach and historical evidence indicates that the action is a violation of the theological apostasy against God, and therefore only God who has a right to punish. In al-Qur’an, the type of punishment is non-physical punishment and will be executed in hereafter. The act of apostasy will be punishable by death if apostasy is in political arena and civil matter, which is followed by resistance and rebellion against legitimate political authority that interfere with public safety and official authority. Therefore, the provision of the punishment is handed over to the legitimate political institutions (ta’zir) to determine the appropriate punishment.DOI: 10.15408/ajis.v16i1.2895