Journal articles on the topic 'Judicial balance'
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Klatt, Matthias. "Judicial review and institutional balance." Revus, no. 38 (December 28, 2019): 21–38. http://dx.doi.org/10.4000/revus.5180.
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Enonchong, Laura-Stella Eposi. "Judicial Independence and Accountability in Cameroon: Balancing a Tenuous Relationship." African Journal of Legal Studies 5, no. 3 (2012): 313–37. http://dx.doi.org/10.1163/17087384-12342013.
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Abstract This article examines Cameroon’s approach to judicial accountability focusing on its political accountability to the executive. The article contends that the judiciary in Cameroon is excessively accountable to the executive, a position which has resulted to the absence of judicial independence. It also contends that a constitutional reform is necessary to restructure the relationship between the executive and the judiciary and to reform the institutions of judicial insulation in order to provide adequate balance between independence and accountability.
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Benvenuti, Simone. "The Politics of Judicial Accountability in Italy: Shifting the Balance." European Constitutional Law Review 14, no. 2 (June 2018): 369–93. http://dx.doi.org/10.1017/s1574019618000214.
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Oliinyk, V. S. "JUDICIAL REFORM IN UKRAINE: PROBLEMS AND PROSPECTS." Scientific journal Criminal and Executive System: Yesterday. Today. Tomorrow 2022, no. 1 (September 2, 2022): 112–19. http://dx.doi.org/10.32755/sjcriminal.2022.01.112.
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The article considers the following areas of reforming the judicial system of Ukraine: strengthening the independence of the judiciary from other branches of government and officials; establishing a reliable mechanism for bringing judges to justice for unjust decisions; establishing a balanced relationship between the judiciary and law enforcement; as well as improving the system of execution of court decisions with the formation of proposals for improving the judicial system of Ukraine. The current law “On the Judiciary and the Status of Judges” contains provisions on the possibility of prosecuting judges for corruption offenses and for violations of procedural law. The following conclusions and suggestions were made: The President of Ukraine and other branches of government must be completely removed from the formation of the judiciary. Judges should be responsible not only for crimes, but also for disciplinary action for unjust decisions, including those ones that do not comply with or contradict substantive law. For the Prosecutor’s Office to be impartial, it must be independent from the President and other authorities and formed on a competitive basis. The Attorney General in our legal system should be appointed by the parliamentary opposition, which will create a balance of interests in this area. The system of execution of court decisions in Ukraine is characterized by its inaction and insolvency. Creating an effective executive service is an important task of the state. Stimulation of efficiency of activity of state executors can be carried out by material stimulation, granting of certain essential bonuses depending on coefficient of efficiency of the executed court decisions. Key words. judicial system of Ukraine, judicial branch of government, judicial reform, courts, judges, court decisions
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Dharsana, I. Made Pria. "Strengthening the Role of the Judicial Commission Through Innovative Strategies to Balance Independence and Impartiality with Judge Accountability." International Journal of Multicultural and Multireligious Understanding 8, no. 10 (October 18, 2021): 328. http://dx.doi.org/10.18415/ijmmu.v8i10.2997.
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The role of the Judicial Commission is very important in the power of the judiciary because one of the forms of state administration in Indonesia is helping to implement an integrity system in the exercise of judicial authority. Besides that, it is also stated in Article 24B paragraph (1) of the Constitution that the Judicial Commission is independent in nature which has the authority to propose the appointment of Supreme Court justices and has other powers in the context of maintaining and upholding the honor, dignity, and behavior of judges. The enactment of Law Number 8 of 2011 is one form of strategy in strengthening checks and balances in judicial power. as for the research method used in this study is a normative legal research method. Furthermore, it is unfortunate that the external authority granted by Law Number 22 of 2004 and has been amended by Law Number 18 of 2011 concerning the Judicial Commission, is very limited, and the limited powers were later amputated by the decision of the Constitutional Court. This limited authority belongs to the enforcement of the Code of Ethics for the Code of Conduct for Judges (KEPPH). This authority is clearly not optimal and then becomes an obstacle for the Judicial Commission in designing innovative strategies in balancing judicial power through Independence, Impartiality and Accountability in the implementation of Judges containing fair decisions.
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Klatt, Matthias. "Positive rights: Who decides? Judicial review in balance." International Journal of Constitutional Law 13, no. 2 (April 2015): 354–82. http://dx.doi.org/10.1093/icon/mov019.
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Králová, Alžbeta. "Legal remedies in asylum and immigration law: the balance between effectiveness and procedural autonomy?" Central European Public Administration Review 16, no. 1 (June 1, 2018): 67–79. http://dx.doi.org/10.17573/cepar.v16i1.358.
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The paper tackles a widely discussed but still rather under-researched area of asylum and immigration law, more precisely its procedural aspects and its interactions within the public administration and administrative judiciary. It contributes to the debate about the Europeanization of public administration within the specific context of asylum and immigration law.The purpose of the paper is to examine the influence of European Union law on the legal regulation of administrative and judicial review of decisions rendered in asylum and immigration procedures.The research is based on an in-depth analysis of the dynamics of amendments and the motivation of national legislation while adopting new procedural rules in the above-mentioned areas on the case of the Czech Republic (based on the description and analysis of the legal regulation, explanatory memoranda and the case law, supplemented with certain comparative aspects). The procedural autonomy principle gets increasingly limited by other principles, namely the effectiveness principle and the principle of effective judicial protection. The paper therefore focuses on the margin of appreciation left to the national legislator: it determines whether the principle of procedural autonomy keeps the real relevancy while harmonising the asylum and immigration law and what is the influence of tensions between the aforementioned principles.The research shows that the legislator still maintains quite a wide degree of margin of appreciation in the administrative and judicial review of asylum and immigration decisions (apart from the visa procedures). However, a broadening of the interpretation of the effective judicial protection principle as provided by Article 47 of the Charter of Fundamental Rights of the EU decreases the scope of procedural autonomy and has the potential to influence not only individual legal remedy, but also the system of administrative or judicial remedies as such. Besides the overall findings related to the influence of European Union law on the review in asylum and immigration procedures, the article tackles numerous practical implications of amendments based in European Union law and practical challenges for the administrative and judicial review in concerned area of law.The paper provides a reaction to tensions coming from the need to find the balance between the obligation to provide an effective remedy and between the autonomy of Member States and their attempts to preserve national procedural traditions and specificities within the system of administrative and judicial review. It is original by its overall view on the problematic of remedies in asylum and immigration law and by a new perspective of interactions between national legislation and European Union law. Although the research is limited to the case study of the Czech Republic, certain aspects apply to other Member States with similarities within their system of administrative and judicial review.
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Igor’ Yu., Voronov. "The Individual Judicial Regulation in Balancing the Rights and Legal Interests of the Employee and the Employer." Rossijskoe pravosudie, no. 4 (March 25, 2022): 41–52. http://dx.doi.org/10.37399/issn2072-909x.2022.4.41-52.
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The article analyzes the issues of individual judicial regulation aimed at maintaining the balance of rights and legal interests of the employee and the employer. The analysis of judicial acts, which use the concept of “balance of interests”, “balance of constitutional rights and legitimate interests” and criticize the scientific approaches based on legal positivism, as well as on the scientifically debatable concept of integrative legal understanding. From the position of scientifically grounded concept of integrative legal understanding the author’s conclusions and proposals are formulated. Including the conclusion that “the balance of rights and legal interests of the employee and the employer” is achieved by means of legal and individual (including individual judicial) regulation of labor legal relations through the application of various forms of national and international labor law.
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Eltis, Karen. "The Judicial System in the Digital Age: Revisiting the Relationship between Privacy and Accessibility in the Cyber Context." McGill Law Journal 56, no. 2 (April 28, 2011): 289–316. http://dx.doi.org/10.7202/1002368ar.
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Despite technology’s reach into all parts of social life, its effects on the judiciary have been under-theorized. The “Digital Age”, and unfettered usage and access to digital information, will have untold effects on core values of judicial independence, impartiality and the delicate balance between privacy and the “open court” principle. Technology—as well as the dramatically increased availability of information of all kinds and quality—is distorting the judicial process and its outcomes. It is of primary importance, therefore, to identify the broad issues that emerge from the growing use of technology, and to provide a theoretical basis for adjudicating the ongoing tension between privacy and transparency in the judicial setting. Too often the judiciary pits privacy against the “open court” principle and accepts a culturally narrow view of what constitutes privacy and how it affects the judicial process. In particular, this article investigates the effects of online court documents to establish why, despite the current preference for openness and transparency, a contextualized understanding of privacy is desirable. Indeed, if we rethink privacy within the cyber context, it can be considered an ally of openness in the court system.
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BOBROVA, Yu Iu. "GENDER BALANCE OPPORTUNITIES IN THE JUDICIAL SYSTEM OF UKRAINE." Scientific Journal of Public and Private Law 1, no. 1 (2019): 3–8. http://dx.doi.org/10.32844/2618-1258.2019.1-1.1.
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Bobek, Michal. "The Administration of Courts in the Czech Republic: In Search of a Constitutional Balance." European Public Law 16, Issue 2 (May 1, 2010): 251–70. http://dx.doi.org/10.54648/euro2010018.
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This article focuses on the administration of courts in the Czech Republic and Slovakia. The comparison of the recent developments and case law in both countries suggests that in post-Communist societies, the problems encountered in the area of the administration of courts are the same irrespective of the institutional design chosen, that is, irrespective of the fact whether or not a country established a self-standing judicial council or not. Moreover, as the current developments in Slovakia show, the establishment of an independent judicial council in a politically immature environment may even lead to certain ‘hijacking’ of a new institution by the old Communist judicial elites and the sealing-off of the institution behind a veil of judicial independence
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Rai, Sheela. "WTO dispute settlement system and democracy." Journal of International Trade Law and Policy 13, no. 2 (June 10, 2014): 185–96. http://dx.doi.org/10.1108/jitlp-09-2013-0025.
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Purpose – The purpose of this paper is to analyse the current proposals for reform of the World Trade Organization (WTO) dispute settlement system. Two areas of proposed reforms have been chosen: one is regarding democratic control over the WTO dispute settlement body and the other is regarding structural balance within the WTO. Design/methodology/approach – It is a theoretical study based on decided cases, opinions and writing of other writers. Findings – Democratizing a judicial body from within is not the most desirable method to control it. Separation of powers and checks and balances which is termed as institutional balance in WTO is a better way to rein in the judicial organ of the WTO. Originality/value – Most of the work on WTO judicial reforms have either concentrated on technical aspects. Some writers have written about the dispute settlement system from a political point of view. Most of the writings seem to be shy of pointing towards obvious developments in the WTO dispute settlement system, e.g. the precedent system. The work analyses the proposed reforms from two perspectives and presents writer’s opinion on them which is clearly and openly stated.
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Harkusha, Vyacheslav. "The principle of independence of the judiciary as the basis of a democratic society." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 1, no. 1 (March 29, 2021): 72–76. http://dx.doi.org/10.31733/2078-3566-2021-1-72-76.
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The article is devoted to the state of relations between the judiciary and the legislative and executive branches of government, maintaining a balance between branches of government, seeking to improve and optimize the organization of the judiciary in order to ensure access to justice by an independent and impartial court. The initiated judicial reform in 2016, as well as the attempt to restart it in 2019 and the current state of the judicial system are analyzed. The range of problematic issues in the field of justice and the reasons for their occurrence, the main of which are the imperfect balance between the branches of government, inefficient activities, and in some cases the inaction of the legislative branch. Sociological research was analyzed and the level of public confidence in the judiciary was established. It is concluded that in order to ensure the independence of the judiciary, as well as maintaining an effective balance between all branches of government, it is necessary to create conditions under which all three branches of government will be responsible for their actions before each other and control of one branch of government people in accordance with the principle of the rule of law. The necessity to develop a national strategy for the development of the judiciary, which should be adopted at the legislative level for at least 10 years and ensure the impossibility of changing the "rules of the game" in the field of justice during this period. The concrete and urgent steps that the judicial system needs today are identified, namely, the adoption at the legislative level of the procedure for forming the High Qualifications Commission of Judges of Ukraine, holding a fast and effective competition and, accordingly, launching this body. Until the formation of the High Qualifications Commission of Judges of Ukraine, its powers must be transferred to the High Council of Justice, which must take urgent measures to address staffing issues, including completing the selection for the position of judge, announced in 2017. To solve these problems, the Verkhovna Rada of Ukraine must adopt registered bills № 3711 and 4055.
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Scaccia, Gino. "Tribunales supranacionales de justicia y activismo judicial." Teoría y Realidad Constitucional, no. 44 (November 15, 2019): 177. http://dx.doi.org/10.5944/trc.44.2019.26000.
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Se abordan en este trabajo algunas de las razones subyacentes a esta tendencia estructural de los tribunales europeos hacia el activismo, exponiendo la teoría de que a la luz del contexto institucional europeo, parece que no existen las condiciones ni los incentivos institucionales para alcanzar un balance razonable entre la dimensión política-histórica y la judicial-interpretativa de los derechos fundamentales.In the following pages, It will analyse some of the reasons underlying this structural tendency of the European Courts towards activism, explaining the theory that considering the European environmental framework, it appears that there are no conditions and institutional incentives to reasonably reach a balance between the political-historical dimension and the judicial-interpretative one of the fundamental rights.
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Tang, Leyan. "Study on China’s Judicial Review Mechanism of the Administrative Emergency Acts under Critical Situations." BCP Social Sciences & Humanities 16 (March 26, 2022): 18–21. http://dx.doi.org/10.54691/bcpssh.v16i.433.
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In recent years, emergencies have appeared a high frequency of occurrence. And administrative emergency power has performed its powerful functions in minimizing personal injury or death or property losses caused by emergencies. However, the rapid expansion of administrative emergency power has also resulted in many improper or illegal problems during the enforcement process. Therefore, as an interest balance mechanism, when judicial power intervenes in emergency actions, special arrangements should be made on its specific rules to distinguish it from the judicial review of normal administrative acts, and the principle of balance and limit should run through the system construction to innovate and reconstruct the judicial emergency review mechanism, so as to give an effective play to the main function of judicial review mechanism in protecting human rights, supervising administration and coordinating public and private interests.
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Igor’ Yu., Voronov. "The Balance of Rights and Legal Interests of the Employee and the Employer in the Regulation of Hidden Labor Relations." Rossijskoe pravosudie, no. 5 (April 25, 2022): 60–73. http://dx.doi.org/10.37399/issn2072-909x.2022.5.60-73.
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The article analyzes the issues of individual contractual and judicial regulation aimed at maintaining a balance of rights and legal interests of the employee and employer in hidden labor relations. The points of view of labor law specialists and judicial acts which use the concept “balance of interests” and “hidden labor relations” are analyzed and the scientific approaches based on the legal positivism as well as on the scientifically debatable concept of integrative legal understanding are criticized. From the position of scientifically grounded concept of integrative legal understanding the author’s conclusions and proposals are formulated. Including the conclusion that the balance of rights and legal interests of the employee and the employer is achieved by the legal and individual (contractual and judicial) regulation of hidden labor relations through the application of various forms of national and international labor law.
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Burdina, E. V., and M. V. Chizhov. "Continuity of Justice: COVID-19 Judicial Isolation Lessons." Rossijskoe pravosudie, no. 10 (September 27, 2021): 5–15. http://dx.doi.org/10.37399/issn2072-909x.2021.10.5-15.
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Formulation of the Problem. COVID-19 has changed the legal being and functioning of the justice system. The main purpose of the judiciary was threatened – to provide everyone with a means to protect their rights, to be available to protect justice. The formulation of promising tasks of the judicial system is possible both taking into account the outcome of judicial isolation, and in the context of radically changed economic and social realities after the epidemic. Purpose of the Work: on the basis of the analysis of the activity of courts of different law and order under the restrictions associated with COVID-19, to formulate theoretical and practical conclusions aimed at maintaining the uninterrupted administration of justice and judicial activity in the modern conditions of the information society. Methods. The methodological base consists of traditional techniques and methods of scientific knowledge (dialectical, logical, system analysis, comparative legal, etc.). Results, Brief Conclusions. Classic legal perceptions of justice and the judiciary are undergoing paradigm shifts as a result of recognition of the value of the outcome of the Fourth Industrial Revolution and digital technology. The present period is the period of the methodological search for the balance and stability of judicial institutions in the changed realities. In the framework of theoretical and legal modeling of the justice system, the terminological apparatus of the judiciary needs to rethink, since many traditional concepts, under the influence of digitalization and social grounds, transform or expand their content. The author offers a look at the problems of defining the term «e-justice», the problems of increasing demand for justice and the adaptation of digital technologies to the needs of the judiciary.
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Stroh, Alexander. "Sustaining and jeopardising a credible arbiter: Judicial networks in Benin’s consolidating democracy." International Political Science Review 39, no. 5 (November 2018): 600–615. http://dx.doi.org/10.1177/0192512118805366.
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Democracy greatly benefits from credible courts. If context conditions make democratic consolidation unlikely, as in many African countries, credible arbitration between political actors can be essential for democracy. This article argues that informal judicial networks can critically affect a court’s credibility. Network analysis of Benin’s Constitutional Court using original data on major politicians and all 25 judges who have served between 1993 and 2018 provides evidence that biased judicial networks can jeopardize the crucial role of courts for democratic consolidation. In Benin, the loss of credibility under the Yayi presidency correlates with a clear political representation bias on the constitutional bench whereas socio-cultural representation remained balanced. Since executive and legislative appointment practices account for the network balance or bias, the political creation and privation of informal judicial relations emerges as an interesting avenue for studies of democratic consolidation.
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Peng, Xinlin, Xiaoshuang Luo, and Jian Li. "Meaning construction and judicial identification: Difficulties and countermeasures of criminal regulation of illegal fundraising behavior on online P2P lending platforms." International Journal of Legal Discourse 4, no. 1 (April 26, 2019): 47–68. http://dx.doi.org/10.1515/ijld-2019-2018.
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Abstract At present, there exist several difficulties in the criminal regulation of illegal fundraising activities on China’s P2P platforms, such as discovering, identifying, tracking, and preventing. To solve these difficulties in the criminal regulations, this study applies the problem-oriented approach to evaluate the meaning constructions of illegal fundraising behavior on online P2P lending platforms in the corresponding judicial identifications, that is, judicial regulations and interpretations. After analyzing the judicial documents of 192 criminal cases in China, this study finds that it is necessary to actively draw on successful extra-territorial experience, and further establish a reasonable balance between maintaining financial security and promoting financial innovation. Specifically, the judiciary could adjust the current single loose criminal policy into one that combines leniency with rigidity, perfect the criminal law and its interpretation system of illegal fundraising behavior on P2P platforms, strengthen the connection mechanism of punishment and execution, explore the specialized case-handling mechanism, and implement a case guidance system.
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Mejía Turizo, Jorge, and Roberto Pérez Caballero. "Judicial activism and its effects on the division and balance of powers." Justicia 3, no. 27 (January 1, 2015): 30–41. http://dx.doi.org/10.17081/just.3.27.319.
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CAFAGGI, Fabrizio, and Paola IAMICELI. "Uncertainty, Administrative Decision-Making and Judicial Review: The Courts’ Perspectives." European Journal of Risk Regulation 12, no. 4 (October 14, 2021): 792–824. http://dx.doi.org/10.1017/err.2021.47.
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The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision-making and new balances between precaution and evidence-based approaches. The role of scientific evidence has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.
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BILL CHAVEZ, REBECCA. "The Evolution of Judicial Autonomy in Argentina: Establishing the Rule of Law in an Ultrapresidential System." Journal of Latin American Studies 36, no. 3 (August 2004): 451–78. http://dx.doi.org/10.1017/s0022216x04007758.
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This article uses a diachronic study of Argentina to explain how the nascent democracies of Latin America build the rule of law. The changing relationship between Argentina's executive and judicial branches demonstrates that the construction of the rule of law is not a linear process. There have been periods of regression away from, as well as progress towards, the rule of law. This article uses party competition to explain Argentina's varying levels of judicial independence. The rule of law results from a balance of power between at least two political parties, neither of which has monolithic control, meaning that no highly disciplined party sustains control of both the executive and legislative branches. Competitive politics creates a climate in which an autonomous judiciary can emerge.
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But, Illia. "Application of the Balance of Probabilities Standard of Proof in Judicial Practice." Law Review of Kyiv University of Law, no. 4 (December 30, 2020): 227–33. http://dx.doi.org/10.36695/2219-5521.4.2020.40.
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The paper describes key standards of proof used in common law countries: balance of probabilities and beyond reasonable doubt,applied in judicial practice in the UK, and the criminal standard beyond reasonable doubt, civil standard preponderance of evidence,and interim standard clear and convincing evidence, applied in judicial practice in the USA.
The author identifies main conditions for application of the balance of probabilities standard in foreign judicial practice: 1) thisstandard is not merely a surmise based on guesses or suspicions; such surmise shall be based on certain evidence, which in total is notenough to establish presence or absence of a certain fact unequivocally; 2) the graver is an allegation, the less probable is the occurrenceof the fact, and hence it must be proved with harder evidence; 3) the less probable is an event, the more evidence there must be to provethat it might have truly occurred; 4) there is no direct connection between graveness of an allegation (consequences) and probability ofan event: some grave harmful conduct may be fairly common or, on the contrary, may happen rather infrequently.The paper identifies step-by-step implementation of standards of proof in practice of the European Court of Human Rights(ECHR): at the first stage one can find references to standards of proof only in cases against the United Kingdom; at the second stagethere are judgments made on complaints against other countries, though in such judgments the ECHR does not assess standards ofproof, but merely reflects that those have been applied by national courts. At the third (contemporary) stage the ECHR only distingui -shes between application of standards of proof in criminal and quasi-criminal cases.The author concludes on the basis of study of empirical data that the balance of probabilities standard of proof is already appliedin the national judicial practice, however principles of its application in the judicial practice have not been developed yet. It is notedthat though the doctrine of the standards of proof was developed in the common law countries, application thereof does not contradictthe concept of judicial activism: an idea, according to which a decision must be made in favour of the party, whose statements are reliablenot per se, but in comparison with statements of the adverse party, enables courts to make judgments in cases when positions ofboth sides are impeccable, and evidence for unequivocal conclusions is not enough.
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Begum, Afroza. "Preserving the distinctiveness of corporate marks." Journal of Financial Crime 25, no. 3 (July 2, 2018): 734–49. http://dx.doi.org/10.1108/jfc-05-2017-0040.
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Purpose This paper aims to investigate the Indian legal and judicial approaches to well-known trademark (WT) by placing special focus on the way the judiciary has striven to foster the regulatory goal of defending the distinctiveness of WT. Design/methodology/approach The research is based on primary and secondary resources; especially, the paper critically examines the central piece of legislation relevant to WT and analyses and compares a number of important judicial decisions of India. Findings Despite some limitations, the judicial initiatives reflect an impressive progression towards WT, and given the contemporary commercial imperatives backed up by technological advances, the interconnectedness of economies and global corporisation, such a progression is indispensable. Research limitations/implications The research involves only the legal aspects of WT; therefore, the social and economic implication is beyond the scope of it. Practical implications Even though the legal and judicial attempts in India have raised an inevitable tension between different competing claims and are in some instances intensely debated, a review of existing resources evidences a series of effective methods and practices where a balance can sensibly be drawn between those claims.
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Mohamedameen, Mohammed Shahab, and Ibrahim Mohammad Haje. "Proportionality as a judicial tool in striking a balance between management discretion and citizens' rights (a comparative study)." Twejer 4, no. 1 (May 2021): 745–806. http://dx.doi.org/10.31918/twejer.2141.17.
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This study deals with clarifying the issue of (proportionality or suitability) administrative decisions and the possibility of supervising the administrative judiciary on administrative decisions in terms of proportionality, through an analytical comparative study between the French, the Egyptian and the Iraqi at the jurisprudential and judicial level. The practical importance of this topic lies in knowing the modern role that the administrative judge plays in the area of his control over administrative decisions that went beyond the abstract control of the internal project, which was stopped at the limit of the control of the legal adaptation of facts towards the element of cause - as this control went beyond the control of the administration’s assessment of the importance of Realistic reasons and an assessment of the proportionality between their importance and seriousness and the action taken in their regard. The purpose of this study is to clarify the concept of proportionality control in the administrative judiciary, to clarify the issue of the contradiction between discretionary authority and proportionality, between separation of powers and proportionality, and to clarify the position of the judiciary and administrative jurisprudence on the control of proportionality in the administrative judiciary, to clarify the comparative jurisprudential trends from monitoring proportionality in the administrative judiciary And to clarify the limits of control over the cause of the administrative decision and the authority of the judge between legality and suitability, and to indicate the modern means upon which the administrative judge relies upon examining the decision. The problem of the study is: that the administrative judge, within the framework of his control over proportionality, examines and searches for the latter within the elements of the internal legality of the decision; For what is this censorship focused? That is, what is the element that the administrative judge examines? And does the administrative judge, by using the means of controlling proportionality, remain a judge of legality, or does this control include it within the scope of convenience, as it is one of the issues that the administration is independent of when issuing its decisions? What are the limits of judicial oversight on The authority of proportionality? To what extent is the proportionality audit inconsistent with the discretionary authority and the principle of separation of powers? What is the legal basis for the proportionality audit according to the comparative jurisprudential and judicial debate? Does oversight differ in proportion to oversight, legal conditioning? What are the modern techniques or methods that an administrative judge uses when examining an administrative decision to discover proportionality?
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Corns, Christopher. "Prosecution Accountability and Judicial Review." Victoria University of Wellington Law Review 53, no. 1 (May 26, 2022): 1–28. http://dx.doi.org/10.26686/vuwlr.v53i1.7580.
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This article examines the various ways that prosecution decisions can be challenged and, in particular, the extent to which prosecution decisions might be susceptible to judicial review. The focus is on the decision to commence or not to commence a prosecution. First considered is the extent to which that decision can be challenged pursuant to conventional criminal procedures. The availability of tort-based civil proceedings and the extent to which prosecution decisions are susceptible to judicial review are then considered. It is argued that providing adequate avenues to challenge prosecution decisions needs to be seen in the broader context of (a) the need to balance prosecutorial independence and prosecutorial accountability and (b) the separation of powers doctrine.
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Schindeler, Emily. "The Problematic of Judicial Accountability." Legalities 1, no. 2 (September 2021): 210–30. http://dx.doi.org/10.3366/legal.2021.0017.
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Judicial officers are critical actors in the operation of the justice system. Because of the powers inherent in this role, protections for judicial independence and protections against judicial misconduct are equally essential elements in the design and operation of the justice system. Judicial self-regulation has been the primary arrangement for responding to substantiated allegations of misconduct that is deemed insufficient to warrant referral to parliament for consideration of removal from office. Reflecting on the relatively recent performance of systems and processes in responding to alleged judicial misbehaviour, this article seeks to foster discussion on the best means for achieving the balance between the power of the position and accountability for its exercise.
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Tariq, Aisha, Muhammad Mumtaz Ali Khan, and Ikram Ullah. "Reformation of Prisoners Through Rehabilitation; The Analysis of The Pakistani System in the Light of International Standards." Review of Education, Administration & Law 5, no. 3 (September 20, 2022): 257–66. http://dx.doi.org/10.47067/real.v5i3.240.
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Several aspects of Pakistan’s present rehabilitation structure are inconsistent with the emerging norms of International human rights law. This research suggests that the existing statutory, administrative and judicial systems should be reformed to attain exactitude in the law through maintaining a correct balance between the notion of ‘public protection’ and the ‘rights of sentenced persons’ through a fair and balanced reformation and rehabilitation centric system.
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Galuzina, Ksenia A. "The Balance of Interests of Parties to Enforcement Proceedings in Laws and the Judicial Practice." Arbitrazh-civil procedure 5 (May 20, 2021): 57–60. http://dx.doi.org/10.18572/1812-383x-2021-5-57-60.
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In this publication, the author focuses on the fact that the task of enforcement proceedings is the correct and timely execution of judicial acts, and not the punishment of the debtor. In this regard, the need to balance the interests of the parties of the enforcement proceedings in legislature and in judicial practice is justified.
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Martin, David A. "Judicial Review and the Military Commissions Act: On Striking the Right Balance." American Journal of International Law 101, no. 2 (April 2007): 344–62. http://dx.doi.org/10.1017/s0002930000030116.
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Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the United States Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy—President George W. Bush’s unilateral establishment of military commissions to try terrorist suspects by means of reduced procedures—and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantánamo and other U.S. detention sites overseas; it limits certain key protections available to the accused in a military commission proceeding, as compared to courts-martial; and it takes a crabbed view of the requirements of common Article 3 of the Geneva Conventions—at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible—and highly desirable.
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Prasedyomukti, Ahmad Firmanto, and Rakhmat Bowo Suharto. "The Role of Judicial Commission on Supervision of Judge�s Crime in Indonesia." Jurnal Daulat Hukum 1, no. 4 (December 10, 2018): 895. http://dx.doi.org/10.30659/jdh.v1i4.3931.
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This booklet is designed to examine the effectiveness of the Judicial Commission's role in the supervision of judge�s crime in Indonesia, as well as existence. Based on the discussion, we can conclude: 1) The role of the Judicial Commission in the framework of the supervision of judge�s crime has not been effective, due to the legal existence of the Judicial Commission recognized but on a practical level does not have the authority to impose administrative punishment on their own, the Judicial Commission had no authority investigations against the judge found to have violated the rules of the criminal. 2) Need for reconstruction of the existence of the Judicial Commission under the supervision of �judge�s crime offense, so there is a balance between the authority of the Judicial Commission and the follow-up comprehensively.Keywords: Judicial Commission; Supervision; Judge.
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Shutenko, Oksana. "The principle of balance in civil procedural relation." Legal Ukraine, no. 12 (December 19, 2019): 17–23. http://dx.doi.org/10.37749/2308-9636-2019-12(204)-2.
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The article is devoted to the study of a new principle of civil procedural law – the principle of balance of civil procedural legal relations. The article contains conclusions about the deep significance of the principle of balance for the effective functioning of the justice system. The analysis of the effect of this principle in simplified procedures of civil proceedings is carried out. We distinguish the principle of the balance of civil procedural relations and understand it as achieving the equilibrium of the specified system – a stable balance of elements of the system in a limited period of time (at this stage of existence). Simultaneously with constancy, any system is characterized by instability as a resource for system development and improvement, for entropy prevention and system catastrophe. The principle of the balance of civil procedural relations is manifested primarily in the fact that the amount of legal interest is directly proportional to the amount of procedural rights conferred on the subject of the process. When applying the simplified procedures of civil litigation, the following is observed: the equilibrium in the judicial process at first glance is broken due to the proper simplification of the judicial procedure, the absence of traditional stages, institutions of civil litigation. Meanwhile, the aforementioned is offset by the speed of consideration and resolution of the case. The principle of the balance of civil procedural relations is of particular importance at the stage of modern lawmaking, when there is a change in outlook and the formation of a new understanding of justice in the civil process, namely, the purpose of civil justice is more widely disclosed. Such conclusions are led by the analysis of the novelties of the Civil Procedure Code of Ukraine – simplified (in comparison with the general lawsuit) civil litigation procedures in which there is one way or another no dispute about the law – there is a weakening or absence of dispute. Key words: principles of civil procedural law, efficiency of legal proceedings, simplified judicial procedures, principle of balance, civil procedural legal relations.
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Shutenko, Oksana. "The principle of balance in civil procedural relations." Slovo of the National School of Judges of Ukraine, no. 3(28) (February 19, 2020): 153–62. http://dx.doi.org/10.37566/2707-6849-2019-3(28)-12.
Full textAbstract:
The article is devoted to the study of a new principle of civil procedural law – the principle of balance of civil procedural legal relations. The article contains conclusions about the deep significance of the principle of balance for the effective functioning of the justice system. The analysis of the effect of this principle in simplified procedures of civil proceedings is carried out. We distinguish the principle of the balance of civil procedural relations and understand it as achieving the equilibrium of the specified system - a stable balance of elements of the system in a limited period of time (at this stage of existence). Simultaneously with constancy, any system is characterized by instability as a resource for system development and improvement, for entropy prevention and system catastrophe. The principle of the balance of civil procedural relations is manifested primarily in the fact that the amount of legal interest is directly proportional to the amount of procedural rights conferred on the subject of the process. When applying the simplified procedures of civil litigation, the following is observed: the equilibrium in the judicial process at first glance is broken due to the proper simplification of the judicial procedure, the absence of traditional stages, institutions of civil litigation. Meanwhile, the aforementioned is offset by the speed of consideration and resolution of the case. The principle of the balance of civil procedural relations is of particular importance at the stage of modern lawmaking, when there is a change in outlook and the formation of a new understanding of justice in the civil process, namely, the purpose of civil justice is more widely disclosed. Such conclusions are led by the analysis of the novelties of the Civil Procedure Code of Ukraine - simplified (in comparison with the general lawsuit) civil litigation procedures in which there is one way or another no dispute about the law – there is a weakening or absence of dispute. Key words: principles of civil procedural law, efficiency of legal proceedings, simplified judicial procedures, principle of balance, civil procedural legal relations.
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Öberg, Jacob. "The Rise of the Procedural Paradigm: Judicial Review of EU Legislation in Vertical Competence Disputes." European Constitutional Law Review 13, no. 2 (May 26, 2017): 248–80. http://dx.doi.org/10.1017/s1574019617000086.
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EU Law–Vertical competence review of EU secondary law–Court of Justice control of the exercise of EU legislative powers–Strict procedural review of EU legislation–Standard of judicial review and intensity of judicial review–Judicial review as a safeguard of federalism–Constitutional review of EU legislation–Proportionality, subsidiarity and principle of conferral–Balance between the EU legislator’s prerogatives and the need to ensure that EU legislation conforms to the precepts of EU law–Distribution of competences between Member States and the EU
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Klatt, Matthias. "Judicial Review e Equilíbrio Institucional: Comentários a Dimitrios Kyritsis | Judicial review and institutional balance: Comments on Dimitrios Kyritsis." Revista Publicum 5, no. 1 (November 4, 2019): 238–59. http://dx.doi.org/10.12957/publicum.2019.45588.
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Dimitrios Kyritsis nos proporcionou uma notável e interessante teoria sobre a legitimidade do judicial review. Neste artigo eu sobreponho minha própria teoria sobre judicial review a de Kyritsis com o intuito de desenvolver precisamente um aporte com nossas concordâncias e discordâncias sobre o tema, viabilizando, assim, uma base para futuros e proveitosos debates entre nós. Eu resumi brevemente a teoria de Kyritsis, limitando-me às partes as quais considero relevante para minha discussão. Em seguida, eu apresentei minha própria teoria de concordância prática institucional, a qual pode ser aplicada para problemas envolvendo judicial review. A terceira seção compila alguns dos pontos em comum entre nossas teorias, enquanto a quarta seção lista brevemente algumas das pequenas divergências e problemas entre elas. Na quinta seção, eu me dediquei ao que penso ser a distinção mais importante entre nossas teorias, ou seja, a escolha entre o modelo combinatório ou o modelo separatório.
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Molot, Jonathan T. "Principled Minimalism: Restriking the Balance between Judicial Minimalism and Neutral Principles." Virginia Law Review 90, no. 7 (November 2004): 1753. http://dx.doi.org/10.2307/1515648.
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Fritzsche, Alexander. "Discretion, Scope of Judicial Review and Institutional Balance in European Law." Common Market Law Review 47, Issue 2 (April 1, 2010): 361–403. http://dx.doi.org/10.54648/cola2010018.
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This article undertakes an inquiry into the jurisprudence of the Community courts (now the EU courts) discretionary powers and the scope of judicial review, revealing that although they are aware of the issue, they do not address it in depth and leave crucial things unsaid. On the basis of this inquiry, a framework is presented in which discretion and scope of judicial review can be analysed as an issue of horizontal division of tasks and powers between the European courts and the other EU institutions and therefore as part of the general principle of institutional balance. For that purpose, discretion is defined as the administrator’s competence to decide with highest authority about the application of the law to a specific fact pattern resulting from both the absence of precise statutory predetermination and subsequent de novo decision by controlling administrative courts. While the institutional balance between the courts and the other institutions is primarily determined by the attribution of tasks and competences to them by primary and secondary EU law, it unfolds normative power whenever these provisions leave gaps or uncertainties. It is argued that in such cases functional criteria can be utilized to “fine-tune” the institutional balance. The institution that is best suited in terms of organization, composition, function, legitimation, and procedure shall then decide a certain aspect with highest authority. Finally, this approach is applied to the joint application of Articles 101, 102 TFEU to specific cases by the European Commission and the General Court, trying to establish what complex economic facts are and give reasons why the GC must defer to the Commission whenever those facts have to be appraised.
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SANTISO, CARLOS. "The elusive quest for the rule of law: promoting judicial reform in Latin America." Brazilian Journal of Political Economy 23, no. 3 (September 2003): 456–80. http://dx.doi.org/10.1590/0101-31572003-0672.
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ABSTRACT While there exists a consensus on the centrality of the rule of law both for economic development and democratic consolidation, the political economy of legal and judicial reform remains largely under-theorized. The review essay underscores the tensions and trade-offs between the different strategies and objectives of judicial reform in Latin America. Contrasting the experiences of Argentina and Brazil, it high- lights the delicate balance between independence and accountability. It also assesses the role of donor institutions, and in particular the multilateral development banks, in promoting judicial reform. It argues for a more realistic approach to judicial governance, focusing on feasible reforms.
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Fowkes, James. "Adjusting the North-South Balance: Southern Judicial Boldness and its Implications for the Regulation of Global Supply Chains." Deakin Law Review 23 (November 27, 2018): 119–42. http://dx.doi.org/10.21153/dlr2018vol23no0art808.
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Modern regulators have long grappled with the challenges of regulating multinational corporations and their cross-border supply chains. There is a tendency, in this context, to view the problem as one where the most serious or common abuses are to be found in the Global South, but the effective remedies mostly need to be found in the Global North. This article discusses recent examples of expansive, creative judicial activity from India, Colombia and the African regional judicial system to challenge this assumption. Some of today’s Southern judicial activity can break the stereotype in interesting and important ways, and our thinking about regulation in this context needs adjustment accordingly.
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Stenichkin, N. G. "Ensuring the Independence and Autonomy of the Judiciary in the Context of the 2020 Constitutional Reform." Lex Russica, no. 5 (May 20, 2020): 41–52. http://dx.doi.org/10.17803/1729-5920.2020.162.5.041-052.
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The paper analyzes the amendments to the Constitution proposed by the President of the Russian Federation in connection with certain elements of the constitutional and legal status of the judge, evaluates the possible limits of the change of the Basic Law without distorting the fundamental principles and legal foundations of the Constitution, including ensuring the independence and autonomy of the judiciary and the principle of separation of powers. According to the amendments, the powers of the President and the legislature regarding their influence on the judiciary were considerably expanded. It seems that the changes in the legislation detailing the powers of the President to initiate the early termination of the powers of judges and the procedure itself, should be formulated in such a way that the powers of the President and the Council of the Federation in this regard neither overlap with the powers of the qualification boards of judges nor diminish the independence and autonomy of the judiciary. The author argues that judicial self-government plays an extremely important role in maintaining the balance between the branches of government, creating conditions for effective justice through guarantees of independence of judges. In this connection, the decision concerning early termination of the judges’ powers on defamatory grounds without the participation of bodies of the judicial community, in the absence of elements of an adversarial process and without the possibility of appealing against such a decision, significantly diminishes the constitutional and legal status of the judge. As a result of the conducted research it is proved that amendments to the Constitution have redistributed powers between the branches of government, there are real risks of violation of the principle of independence and autonomy of the judiciary. The constitutional reform should result in making laws aimed at preserving the constitutional balance between the branches of government.
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Helgerman, Thomas. "The Fourth Branch of Government: How Direct Democracy is Altering the Structure of State Governments." Pitt Political Review 8, no. 1 (December 16, 2011): 21–24. http://dx.doi.org/10.5195/ppr.2011.10.
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This paper aims to explore how direct democracy (i.e. the initiative and referendum) affect the balance of power in state governments. Traditionally, like the federal government, state governments consist of three branches: executive, legislative, and judicial. Due to a complex system of checks and balances, one branch cannot become too powerful, adhering to an anti-monarchy sentiment of the founders of the United States. In this set-up, the legislative branch is responsible for creating policy, the executive branch is responsible for implementing it, and the judicial branch is responsible for interpreting it. My thesis is that direct democracy, by allowing the populous to directly implement policy without bearing the responsibility for their actions as politicians do, undermines the legislative branch and therefore representative democracy itself, leading to irresponsible legislation that is not subject to the scrutiny of the United States political process.
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Popadynets, H. O. "ESSENCE, CONTENT AND MAIN FEATURES OF THE JUDICIARY." Actual problems of native jurisprudence 4, no. 4 (August 2021): 114–17. http://dx.doi.org/10.15421/392190.
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The article considers the essence, content and main features of the judiciary. Different approaches of domestic and foreign scholars to the definition of the concept and content of the judiciary are analyzed. It is determined that the judiciary in a democratic state governed by the rule of law, in essence, belongs to the system of democracy. It ensures the realization of the most important constitutional rights and freedoms of man and citizen, the rights of communities and the people as a whole. The democratic foundations of the organization and functioning of the judiciary (the presence of juries, the independence of judges, the adversarial nature of the parties) make it possible to consider it as a “special channel for the exercise of people’s power”. The Constitution of Ukraine, along with the consolidation of the signs of statehood for the judiciary, with its norms introduces in more detail the principle of the primacy of democracy in the exercise of judicial power. It is noted that such concepts as “judiciary”, “judicial system”, “justice” are related, but not identical. It has been established that the judiciary, by its purpose and functions, has a special advantage among other branches of government, as there is no such activity of the state that would not be subject to judicial control. The jurisdiction of the court extends to all legal relations arising in the state. In the system of counterbalances, the judiciary is endowed with a legal opportunity to influence the decisions and actions of the legislature and the executive, to “balance” them. These powers are fully exercised by the courts in the administration of justice. The main features of the judiciary are identified, which are exclusivity, independence, completeness, subordination, unity, independence, enshrined at the constitutional and legal level and interconnected and interdependent. It is noted that the constitutional modernization of the judiciary in Ukraine, which is not yet complete, should be based on understanding its essence and content, to improve the judicial mechanism of protection of citizens, the role in the development of legal and democratic statehood. The creation of a dynamic and effective judiciary is a prerequisite for the stabilization of the entire state system, the successful integration of our state into the legal field of civilized countries, the key to its progress.
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Gusarov, Kostiantyn, and Viktor Terekhov. "Finality of Judgments in Civil Cases and Related Considerations: The Experience of Ukraine and Lithuania." Access to Justice in Eastern Europe 2, no. 5 (December 23, 2019): 6–29. http://dx.doi.org/10.33327/ajee-18-2.4-a000020.
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Finality of judgments is a concept that puts an end to the trial, prohibiting subsequent appeals, opening of new proceedings and disputing clearly established facts. Despite being promoted by the Council of Europe and its Court of Human Rights and familiar to most if not all states, its application still encounters misunderstanding in some Eastern European Countries. Deeply rooted ideas of substantive truth and public role of the judiciary, a rather idiosyncratic notion of fair trial and the rule of law all lead to underestimation of the role played by finality in a peaceful life of the society. This article addresses the experience of Ukraine (where a major judicial reform has just taken place) and Lithuania – two post-Soviet nations that both, still in their unique way, worked on implementing the principle of finality into their procedural order. The paper also explores an uneasy balance to be found between this notion and other relevant considerations (access to justice, rule of law, judicial economy and some other).
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Bertomeu, Juan F. Gonzalez. "AGAINST THE CORE OF THE CASE." Legal Theory 17, no. 2 (June 2011): 81–118. http://dx.doi.org/10.1017/s1352325211000073.
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The debate over judicial review of legislation is profuse. But differences are often due to the lack of a common methodology. This article discusses the proper way to evaluate judicial review and confronts central challenges raised against it. It develops the two main models that can be used for analyzing the intersection between democracy and constitutional decision-making and shows that judicial oversight may not be rejected, regardless of how we interpret that connection. The article discusses in detail the model developed by Jeremy Waldron. A nice attempt to answer methodological questions, Waldron's model wrongly tips the balance against judicial review. Its excessive level of abstraction and idealization renders it inoperable. Few systems meet its standards, and those that do pay a high price: they contradict the concept of democratic legitimacy that underlies the model. Paradoxically, a system with judicial review may end up being more legitimate than one without it.
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Glover-Thomas, Nicola. "Getting the Balance Right: Medical Futility, Scientific Advancement, and the Role of Law." Medical Law Review 28, no. 3 (2020): 573–94. http://dx.doi.org/10.1093/medlaw/fwaa011.
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Abstract The concept of medical futility as an applied ethical framework has seen a rise and fall in its popularity over the last 30 years. It is a term used in relation to the assessment of a patient’s health condition that is deemed untreatable, irreversible, and unresolvable. In four recent cases, Gard, Evans, Haastrup, and Raqeeb, the concept has been brought to the fore once again. These cases highlight a mounting tension between clinicians and families. Parental desires to see their child’s treatment continued, while understandable, should not dominate treatment planning. This article analyses judicial interpretation of the factors which determine an assessment of futility and in doing so, argues that the role of medical futility in judicial decisions of this kind is gaining prominence and will continue to do so as scientific advancement blurs the limits of medicine even further.
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López Peña, Edmer Leandro. "RELATIVIDAD DE CONTENIDO DEL INTERÉS GENERAL POR SU DEPENDENCIA AL PRINCIPIO DE ESTADO SOCIAL Y DEMOCRÁTICO DE DERECHO (A propósito del libro “con miras del Interés General” de los profesores ARANAMUÑOZ Y RIVERO YSERN)." Ciencia Jurídica 3, no. 6 (December 4, 2014): 159. http://dx.doi.org/10.15174/cj.v3i2.111.
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El interés general es la justificación por excelencia de la actuación administrativa, pero noes exclusiva de esta rama, tanto la legislativa y la judicial invocan el interés general comocláusula de funcionamiento. El interés general es el espíritu del Estado, él es su guardían2 serel custodio implica para el Estado como Unidad que éste tiene efectos in-put y out-put, pues,por un lado, orienta su actuar (efecto in-put); y, por el otro, sirve como técnica de control desus actos administrativos, judiciales, y legislativos (efecto out-put), allí, la razón del principiode Check and balance.
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Cheyne, Ilona, and John Alder. "Environmental Ethics and Proportionality: Hunting for a Balance." Environmental Law Review 9, no. 3 (October 2007): 171–89. http://dx.doi.org/10.1350/enlr.2007.9.3.171.
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A challenge to the validity of the Hunting Act 2004 in human rights and EC law was recently rejected by the Court of Appeal on the ground that the Act's ethical purpose required judicial deference to the legislature. We argue that the variety of ethical perspectives engaged by the blanket ban on hunting and the traditions of liberalism demand that the courts ensure that Parliament has properly taken into account all competing perspectives. Although the proportionality principle is crucial in this regard, its application in both human rights and EC contexts gives rise to significant uncertainties and difficulties.
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Tsvetkov, Yuri Anatol'evich. "The Independence of the Judges in the Governance of the Judicial System." Russian Journal of Legal Studies 6, no. 1 (December 15, 2019): 73–88. http://dx.doi.org/10.17816/rjls18472.
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The study is aimed at improving the legal and organizational mechanisms that ensure the implementation of the constitutional principle of the independence of judges and the independence of the judiciary. The category of independence of judges is analyzed through the prism of administrative relations in the judicial system, as well as in relation to the level of political maturity of society. Real subjects, aims and tools of management of judges are identified, as well as gaps in the legislation on the status of judges, creating conditions for limiting their independence. The author substantiates the thesis that the problem of the independence of the judiciary rests not only in the question of the balance between external and internal governance, but in the relationship between the judiciary and society. The research methodology is based on the intersection of legal and management analysis. Its conceptual basis is the so-called management approach in law, the initial premise of which is the assertion of the absence of “pure” legal relations, if their participants are subjects that are elements of organizational systems (courts, law enforcement agencies, etc.). These relationships always deviate to some extent from the ideal goals, as set out in the law, towards the goals dictated by organizational effectiveness. The research is based on the empirical base: the data of judicial statistics, the results of sociological research, the data of the included observation - the author’s experience as a magistrate and Federal judge. The study concludes that the strengthening of the independence of judges can occur only with the joint action of the judicial community and civil society. Specific organizational and legal measures aimed at increasing the independence of judges are proposed.
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Jayaraman, Krishnamani. "Dutch judicial entrepreneurship towards legitimizing intellectual property rights." Maastricht Journal of European and Comparative Law 27, no. 5 (October 2020): 684–94. http://dx.doi.org/10.1177/1023263x20954627.
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In its recent judgment in the Sisvel v. Xiaomi case, the Court of Appeal of the Hague has demonstrated how European national legal systems and judiciary therein strive to uphold legitimacy of the intellectual property system. Involving dimensions of both substantive patent law and competition law, the case emphasized proportionality etched in European Union law to determine the legitimate cohesive balance for stakeholder economic interests in the protection, enforcement and use of intellectual property rights. This case note documents the salient features of the judgment and further comments on striking legal concepts that marked the case.
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Артеменко, Галина Анатольевна, and Мария Сергеевн Ильяшенко а. "ARBITRATION PRACTICE AND ITS ROLE IN THE DEVELOPMENT OF TAX LAW." «Izvestia vyssih uchebnyh zavedenij. Seria «Ekonomika, finansy i upravlenie proizvodstvom», no. 4 (46) (December 29, 2020): 14–18. http://dx.doi.org/10.6060/ivecofin.2020464.504.
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This article reveals the problems and procedural features of consideration of tax disputes by Arbitration courts of the Russian Federation, as well as the impact of judicial practice (precedents) on the further development of tax law. The article highlights the most important court decisions on key issues of tax law issued in 2019 and the first half of 2020. Based on the analysis of judicial practice, the article highlights the problematic aspects of justice in tax disputes, and, as a result, the impact of judicial practice on the grounds and procedure for conducting tax control. The article assesses the impact of judicial precedents on the situation of taxpayers and tax authorities, and also identifies the need to find a balance between the interests of the state in the face of tax authorities (public interest) and the interests of taxpayers (private interest).