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1
Glover, Richard. « Codifying the Law on Evidential Burdens ». Journal of Criminal Law 72, no 4 (août 2008) : 305–12. http://dx.doi.org/10.1350/jcla.2008.72.4.305.
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This article examines the concept of the evidential burden and argues that the decision in R v Malinina illustrates that the concept of the evidential burden is in desperate need of clarification. It will be contended that, ultimately, codification would be the best means of achieving that end.
2
Rajah, Meera. « Rationalising the burden of establishing defences at criminal law in Singapore : Reconsidering Jayasena, in the wake of Eu Lim Hoklai ». International Journal of Evidence & ; Proof 21, no 4 (1 mai 2017) : 299–329. http://dx.doi.org/10.1177/1365712717701144.
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The reversal of the burden of proof and the imposition of a mandatory death penalty for certain offences have left the Singapore criminal justice system the subject of much rights-based criticism. Case law hints that there exists a very real possibility of wrongful conviction, should the courts apply s. 107 of the Evidence Act (‘EA’) in its literal sense and shift the legal burden to the accused, irrespective of the defence he seeks to invoke. The Singapore courts have acknowledged that the ‘evidential burden’ of proof as a distinct legal concept on numerous occasions but have not reconciled it with Lord Devlin’s interpretation of s. 3(3) EA in Jayasena, which limits proof to the ‘legal burden’. This article argues that the time has come for the Singapore courts to expressly banish the Jayasena ghost. The fairer approach would be to examine whether the defence falls within the categories of (a) mental condition defences, namely insanity, insane automatism, diminished responsibility and intoxication causing abnormality of mind, and (b) other general defences. Reliance on a defence within the former category will cause the accused to bear the legal burden of proof; he should only bear the evidential burden for the latter.
3
Nance, Dale A. « The Weights of Evidence ». Episteme 5, no 3 (octobre 2008) : 267–81. http://dx.doi.org/10.3366/e1742360008000385.
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ABSTRACTInterest in the Keynesian concept of evidential weight has led to divergent views concerning the burden of proof in adjudication. It is argued that Keynes's concept is properly engaged only in the context of one special kind of decision, the decision whether or not the evidence is ripe for a decision on the underlying merits, whether the latter decision is based on probability, relative plausibility, coherence or otherwise. As a general matter, this question of ripeness is appropriately assigned to the judiciary for resolution as part of the burden of production, rather than to the jury or other factfinder as part of the burden of persuasion.
4
Volpin, Cristina. « The ball is in your court : Evidential burden of proof and the proof-proximity principle in EU competition law ». Common Market Law Review 51, Issue 4 (1 août 2014) : 1159–85. http://dx.doi.org/10.54648/cola2014089.
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This article addresses the limits of the application of presumptions of fact in EU competition law. It describes the most common presumptions of fact in competition law and their implications for evidential responsibilities. It illustrates the emergence of the proof-proximity principle, which allocates the evidential burden of proof on the party to whom the evidence is available or who is better situated to furnish it easily and promptly. This principle ensures the effectiveness of the fact-finding process in public and the private enforcement, while at the same time guaranteeing that Article 2 of Regulation 1/2003 is not violated. The article mentions other areas of law where the proof-proximity principle is applied, and analyses the principle's compatibility with fundamental rights of the defence. It is contended that the proof-proximity principle plays a major role in rendering presumptions of fact compliant with the presumption of innocence enshrined in Articles 6(2) ECHR and 48(1) of the EU Charter of Fundamental Rights.
5
Hopkins, Tamar. « Litigating Racial Profiling : The Use of Statistical Data ». Law in Context. A Socio-legal Journal 37, no 2 (3 septembre 2021) : 37–53. http://dx.doi.org/10.26826/law-in-context.v37i2.155.
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The use of statistical data to prove racial discrimination by police in individual cases is relatively novel in Australia. Based on a survey of international strategies, this article argues that statistical and social science data can play three critical evidential roles in litigation. Firstly, it can form part of the social context evidence used to influence the inferences that can be drawn from other evidence led in a case. Secondly it can influence the cogency of the evidence required for claimants to meet the standard of proof, and thirdly, it can be used to shift the burden of proof. Using these evidential methods, evidence of institutional racism can be used to assist in making findings of discrimination in individual cases. This article speculates on the role that statistics could have played in the Haile-Michael race discrimination claim that settled in 2013, and in the 2019 inquest into the death of Tanya Day.
6
Rix, Keith J. B. « The common law defence of automatism : a quagmire for the psychiatrist ». BJPsych Advances 21, no 4 (juillet 2015) : 242–50. http://dx.doi.org/10.1192/apt.bp.113.012146.
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SummaryThis article sets out the complicated and confused law on automatism and identifies the role of the psychiatrist, including paradoxically a role in cases of non-psychiatric disorder where the law requires evidence from a doctor approved under section 12 of the Mental Health Act. Legal definitions of automatism are introduced. The internal/external distinction, evidential burden, burden of proof, standard of proof, prior fault, intoxication and the degree of impairment illustrate how the courts limit the defence. Detailed accounts are given of cases in which the defence of automatism has been based on psychiatric disorder and on the effects of psychotropic drugs. Suggestions are made for approaches to assessment and medicolegal reporting.
7
Olmedo-Peralta, Eugenio. « The Evidential Effect Of Commitment Decisions In Damage Claims.What Is Theassumptivevalue Ofa Pledge ? » Common Market Law Review 56, Issue 4 (1 août 2019) : 979–1004. http://dx.doi.org/10.54648/cola2019078.
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Despite the extensive use of commitment decisions by the European Commission and national competent authorities (NCAs), the effects of such decisions are far from being completely clear. This paper deals with the problems to claim for damages after a commitment decision has been reached. As these decisions do not state the existence or continuation of the infringement, claimants will bear the burden of proof in stand-alone damages actions. However, some evidential effects must be recognized to commitment decisions and to certain statements made throughout the public enforcement proceedings.We conclude that some measures should be introduced in this regard to ensure the victims’right to a compensation in these cases
8
Tang, Hesheng, Dawei Li, Lixin Deng et Songtao Xue. « Evidential uncertainty quantification of the Park–Ang damage model in performance based design ». Engineering Computations 35, no 7 (1 octobre 2018) : 2480–501. http://dx.doi.org/10.1108/ec-11-2017-0466.
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Purpose This paper aims to develop a comprehensive uncertainty quantification method using evidence theory for Park–Ang damage index-based performance design in which epistemic uncertainties are considered. Various sources of uncertainty emanating from the database of the cyclic test results of RC members provided by the Pacific Earthquake Engineering Research Center are taken into account. Design/methodology/approach In this paper, an uncertainty quantification methodology based on evidence theory is presented for the whole process of performance-based seismic design (PBSD), while considering uncertainty in the Park–Ang damage model. To alleviate the burden of high computational cost in propagating uncertainty, the differential evolution interval optimization strategy is used for efficiently finding the propagated belief structure throughout the whole design process. Findings The investigation results of this paper demonstrate that the uncertainty rooted in Park–Ang damage model have a significant influence on PBSD design and evaluation. It might be worth noting that the epistemic uncertainty present in the Park–Ang damage model needs to be considered to avoid underestimating the true uncertainty. Originality/value This paper presents an evidence theory-based uncertainty quantification framework for the whole process of PBSD.
9
D'yakonova, Mariya. « Harmonization of the Rules on the Distribution of the Evidential Burden on the Example of the Model European Rules of Civil Procedure ». Journal of Russian Law 25, no 7 (6 juillet 2022) : 1. http://dx.doi.org/10.12737/jrl.2021.091.
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Sidoli del Ceno, Julian, Hannah George et Michel Vols. « Adjudication in tenancy deposit scheme disputes : agents’ perspectives ». International Journal of Law in the Built Environment 7, no 2 (13 juillet 2015) : 162–72. http://dx.doi.org/10.1108/ijlbe-09-2014-0026.
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Purpose – The purpose of this paper is to examine empirically the operation of tenancy deposit protection within England and Wales. The paper consciously focuses solely on the views and perspectives of letting agents operating in the various schemes. Design/methodology/approach – The paper is based on a series of semi-structured qualitative interviews with lettings agents in two distinct geographical urban areas, Birmingham and South Wales. Participants were selected for their market presence within a given area and the fact that they were all members of approved regulatory schemes. Findings – Overall, most agents were broadly happy with the process and considered adjudication to be an appropriate form of resolution for tenancy deposit disputes given the often small monetary value of the disputes and the large volume of cases. Concerns were raised, however, regarding the heavy bureaucratic burden placed on agents and on the perceived evidential burden on the landlord. There being a widely held view that a landlord could rarely “win” outright. Research limitations/implications – The qualitative data are based on a relatively small although representative sample of lettings agents’ active within the UK residential property sector. Originality/value – The paper provides original data on the attitudes and perspectives of agents who manage deposit disputes. This is an area of current interest that has yet to receive sustained attention. Although concerned with legislation in England and Wales, its findings and discussion are relevant in other jurisdictions facing similar issues.
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Buist-Catherwood, Emily. « Simunovich and the Defence of Truth ». Victoria University of Wellington Law Review 42, no 3 (3 octobre 2011) : 485. http://dx.doi.org/10.26686/vuwlr.v42i3.5121.
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APN New Zealand Limited v Simunovich Fisheries Limited was a significant Supreme Court judgment regarding the biggest defamation claim in New Zealand's legal history. The Court ruled that third party statements were inadmissible as evidence for a defence of truth, unless such statements could be independently proven to be true. This paper argues that objectively reliable third party statements, such as statements made by the judiciary, should be admissible as evidence for a defence of truth in certain cases. Where a defamatory meaning of reasonable grounds to suspect guilt is pleaded, rather than an allegation of actual guilt, reliable statements made by a third party can be highly relevant in proving the existence of reasonable grounds for suspicion. A high burden is already placed on defendants to negotiate technical pleading and evidential requirements in proving the defence of truth. Simunovich erects an unnecessary further obstacle that will prevent the submission of relevant and reliable evidence. This paper recommends that the Simunovich ruling on third party statements be amended to allow such particulars to be admitted in support of a defence of truth to an alleged defamatory meaning of reasonable grounds of suspicion.
12
Haradasa, Tasneem. « Causation in Section 15 of the Property (Relationships) Act 1976 : Analysing the New Zealand Supreme Court's "Working Assumption" - Is it Really Working ? » Victoria University of Wellington Law Review 50, no 1 (3 juin 2019) : 77. http://dx.doi.org/10.26686/vuwlr.v50i1.5554.
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Scott v Williams concerned s 15 of the Property (Relationships) Act 1976. In situations of significant economic disparity post-separation, s 15 empowers courts to depart from the default rule of equal division of relationship property to compensate the disadvantaged partner. Causation is one of the jurisdictional hurdles. Only disparity "because of" the division of functions (DOF) is compensable. Thus far, courts have adopted a strict causation approach by placing a costly and often unattainable evidential burden on claimants. Consequently, compensation has been beyond reach for deserving claimants. Responding to this disquiet, Scott's majority propounded a "working assumption" of causation in relationships conducted along traditional lines, where one party assumes primary responsibility for domestic duties and the other for income-earning. In such situations, Scott's majority would assume causation at jurisdiction and attribute the entire disparity to the DOF when determining the quantum award. This article concludes that the working assumption is a positive development in terms of jurisdiction. However, unlike the majority, it argues that striking the correct balance between s 15's "because of" wording and broad policy rationale requires an apportionment of causes at quantum. Furthermore, Scott's "traditional lines" and "non-career partner" terminology creates unnecessary confusion and should be eschewed.
13
Ayensu, Jessica, Reginald Adjetey Annan, Anthony Edusei et Eric Badu. « Impact of maternal weight on pregnancy outcomes : a systematic review ». Nutrition & ; Food Science 46, no 4 (11 juillet 2016) : 542–56. http://dx.doi.org/10.1108/nfs-11-2015-0146.
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Purpose The nutritional status of a woman before and during pregnancy is important for a healthy pregnancy outcome. The increasing prevalence of maternal overweight and obesity worldwide has become a problem of concern among public health professionals. The purpose of this paper is to review the evidence regarding the impact of maternal weight on pregnancy outcomes to facilitate the provision of evidence-based information to pregnant women during antenatal clinics in Ghana. Design/methodology/approach A search was conducted in PubMed, PLOS ONE, Cochrane, Embase and bibliographies for all studies on maternal weight and pregnancy outcomes published from January 2000 to May 2013. The key words used for the search were: “pre-pregnancy BMI”, “gestational weight gain”, “maternal weight”, “pregnancy outcomes” and “birth outcomes”. Findings The search yielded 113 papers; out of these, 35 studies were included in the review after exclusion of duplicates and irrelevant papers. Excluded papers included animal studies and human studies that did not meet inclusion criteria. Research limitations/implications The review only considered papers published from 2000 to 2013 and might have left out other important papers published before 2000 and after 2013. Practical implications The origins of the studies included in the review suggest paucity of studies on maternal weight and pregnancy outcomes in developing countries where there is a double burden of malnutrition. There is the need for more studies to be initiated in this area. Social implications Results of this review have revealed that the extremes of maternal weight prior to and during pregnancy increase the risk of maternal and fetal complications. Originality/value This paper provides evidential information on the impact of maternal weight on pregnancy outcomes for counseling during antenatal clinics.
14
Parisi, Francesco, Daniel Pi et Alice Guerra. « Access to evidence in private international law ». Theoretical Inquiries in Law 23, no 1 (1 février 2022) : 77–96. http://dx.doi.org/10.1515/til-2022-0004.
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Abstract This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.
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Wang, Kaicheng, Suxia Lin, Xue Hou, Yongdong Liu, Meichen Li, Jing Chen, Na Wang et al. « Distinct genomic and immune microenvironment between thymomas and thymic carcinomas. » Journal of Clinical Oncology 38, no 15_suppl (20 mai 2020) : e13529-e13529. http://dx.doi.org/10.1200/jco.2020.38.15_suppl.e13529.
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e13529 Background: Thymomas and thymic carcinomas which uniformly known as thymic epithelial tumors (TETs) are rare intrathoracic malignancies and a limited studies have been reported addressing the molecular biology and immune discrepancy. The main purpose of this study was to depict the genomic and transcriptomic landscape of thymomas and thymic carcinomas, as well as elucidate the differentiated immune microenvironment. Methods: Totally 15 thymomas and 7 thymic carcinomas patients were enrolled from January 2014 to July 2018. Treatment-naïve tissue samples were collected, and we also obtained matched peripheral blood mononucleocytes as negative control. DNA and RNA were co-extracted and performed with whole exon and transcriptome sequencing. The immune cell infiltration scores were estimated using ssGSEA algorithm. Results: Exome sequencing revealed that GTF2I mutation occurred in all of type A thymomas but was absent in the aggressive subtypes. The median tumor mutation burden of thymomas was 0.12/Mb, significantly lower than thymic carcinomas (median: 1.02/Mb, p = 0.001). Copy number variation was more common in thymic carcinomas than thymomas (83.3% vs 9.1%, p = 0.005). Top mutational signatures enriched in both thymomas and thymic carcinomas included age and Aristolochic acid exposure, while the APOBEC signature was more common in thymomas than thymic carcinomas (81.8% vs 16.7%, p = 0.03). As a confirmed immune escape event, loss of heterozygosity of human leukocyte antigen was identified in 9.1% of thymomas and 50% of thymic carcinomas. Via unsupervised clustering of immune infiltration, all tissue samples were classified into high- and low-infiltration subgroups. Remarkably, up to 71.4% of samples from thymic carcinomas and only 6.7% of samples from thymomas were defined as low immune cell infiltration. In consideration of specific immune cell types, macrophage ( p = 0.01) and neutrophil ( p = 0.02) were enriched in thymic carcinomas while CD56+ NK cell ( p = 0.005) was enriched in thymomas, indicating the evidential discrepancy about immune cell infiltration between two subtypes of TETs. Conclusions: This study elucidated the molecular and immune microenvironment discrepancy between two subtypes of TETs. From molecular perspective, thymomas and thymic carcinomas are entirely different diseases with different etiology and characterized by distinct immune infiltration, and thus should be managed with disparate therapeutic strategies. Findings in this study may also be useful in future targets development and exploration of immunotherapies in TETs.
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Haciuk, Anna. « Umowy dowodowe w sprawach gospodarczych – refleksje na temat nowej instytucji w postępowaniu cywilnym ». Zeszyty Naukowe Uniwersytetu Rzeszowskiego. Seria Prawnicza. Prawo 29 (2020) : 96–106. http://dx.doi.org/10.15584/znurprawo.2020.29.6.
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The purpose of this article is to introduce the new institution in commercial proceedings – evidentiary stipulations. The article presents the views of the Polish doctrine that have evolved over the years as to the admissibility of concluding evidentiary stipulations in civil proceedings, where these considerations primarily concerned evidentiary stipulations as to the choice of evidences and evidentiary stipulations as to the distribution of the burden of proof. The article describes the general characteristics of evidentiary stipulations, and then discusses in detail the regulations introduced in this respect in commercial proceeding.
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Koo, M. M., G. P. Rubin et G. Lyratzopoulos. « Strengthening the Evidence Base of Cancer Symptom Awareness Campaigns : A Conceptual Framework ». Journal of Global Oncology 4, Supplement 2 (1 octobre 2018) : 36s. http://dx.doi.org/10.1200/jgo.18.19500.
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Background: Cancer control strategies in different countries increasingly encompass public health education campaigns that aim to promote earlier presentation and diagnosis of cancer by raising awareness of possible cancer symptoms. However, the theoretical understanding that underpins these complex early diagnosis interventions remains underdeveloped. Aim: To propose a theoretical framework to guide the design, implementation, and evaluation of cancer symptom awareness campaigns and motivate further relevant research. Methods: Informed by Wilson and Junger's principles of early disease detection for screening (1968) and existing conceptual frameworks for early diagnosis of cancer, we considered the logic model underlying cancer symptom awareness campaigns and relevant emerging evidence from disciplines including health psychology, cancer epidemiology, and health services research. Real-world examples across high-/low-income settings were used where possible to illustrate discussions of implications for practice. Results: We identified four major factors that contribute to the logic model of cancer symptom awareness campaigns beyond contextual and practical factors. Disease burden statistics (cancer site-specific incidence, survival, mortality) could be used to gauge relative need for raising awareness. This should be triangulated with symptom epidemiology (including existing levels of awareness, symptom prevalence, the associated predictive value for cancer, symptom-specific diagnostic timeliness, and whether the symptom is a sign of early stage disease) to motivate selection of individual symptoms in a campaign. Psychosocial factors (such as cancer fatalism or fear and health literacy) and their interaction with symptom awareness should also be considered as they affect symptom appraisal. Further, an understanding and awareness of system factors (availability and access to healthcare, investigation processes, and clinical capacity) will be important for assessing campaign feasibility and knock-on effects in the health system. Based on the above, campaigns should ideally target symptoms that are strongly predictive of early stage (treatable) cancer for which there is low awareness in the target population, and are associated with long intervals to help-seeking. Campaign impact should be amplified by targeting psychosocial barriers to prompt presentation. Additionally, campaigns should be accompanied by downstream capacity planning for potential cancer investigation and subsequent treatment. Conclusion: The proposed framework considers the logic model of cancer symptom awareness campaigns, acknowledging key factors that should be taken into account beyond contextual factors. This could help identify evidential gaps in early diagnosis research, and improve campaign design and evaluation.
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Clément, Jean-Marc. « Proving FTA Preferential Tariff Eligibility : The Evidentiary Burden in Canada ». Global Trade and Customs Journal 15, Issue 3/4 (1 mars 2020) : 168–71. http://dx.doi.org/10.54648/gtcj2020022.
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As is the case with most free trade agreements, importers simply claim preferential tariff eligibility at the time of import. This claim can later be subject to verification by the customs administration in view of determining if it was valid. Proving preferential tariff entitlement requires assembling and presenting relevant facts and documents that support the claim. But just how much evidence is necessary in order to discharge that burden? In Canada there has always been a disconnect between what the Canada Border Services Agency (CBSA) deems necessary in the course of an origin verification and what the courts find satisfactory in the course of a judicial review. What follows are certain illustrations of that disconnect and how it usually gets resolved by Canadian courts. Origin verification, judicial review, NAFTA, burden of proof, non-originating status, eligibility considerations, evidence
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Kudryashov, D. A. « The Issue of Evidentiary Value in Integrated Forensic Investigations ». Theory and Practice of Forensic Science, no 3(43) (30 septembre 2016) : 10–13. http://dx.doi.org/10.30764/64/1819-2785-2016-3-10-13.
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The paper looks at integrated forensic inquiry as a source of evidence in crime detection and investigation. This includes various aspects of assessing the findings of integrated forensic investigation in terms of evidence quality by the party bearing the burden of proof. A list of the most common organizational and procedural errors committed by the party with the burden of proof when requesting and conducting integrated forensic investigation is also examined.
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Sourgens, Frédéric Gilles. « The Precaution Presumption ». European Journal of International Law 31, no 4 (1 novembre 2020) : 1277–306. http://dx.doi.org/10.1093/ejil/chab006.
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Abstract The precautionary principle is a central, if controversial, feature of international legal argument. I explore this controversy through a pluralist lens. What makes the precautionary principle so controversial is that it prevents us from appreciating risk holistically, particularly when appraising responses to policy trilemmas. Instead, claims of precaution focus only on some risks to the exclusion of others. I argue that we can overcome this problem by treating precaution as an evidentiary principle. This approach translates competing precautionary claims into a holistic appreciation of risk in its full factual context. I analyse that existing evidentiary conceptions of precaution (precaution as burden shift and precaution as standard-lowering) do not adequately achieve this goal. I submit that these problems can be overcome when treating precaution as an evidentiary presumption and develop how to formulate it.
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ROSE, KELSEY A. « When Immunity Means Impunity : Lessons for Canada from Recent Cases on State Immunity from Execution ». Canadian Yearbook of international Law/Annuaire canadien de droit international 55 (13 août 2018) : 335–67. http://dx.doi.org/10.1017/cyl.2018.12.
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AbstractThis article reviews recent cases from Canada, Australia, the United Kingdom, and the United States involving state immunity from execution and suggests the burden on creditors to disprove this immunity is excessively onerous. While the problem is much belaboured, few solutions have been explored or implemented. This article proposes that in the Canadian context, adjusting the evidentiary burden on parties to an execution immunity dispute would improve the ability of creditors to obtain fair payment from debtor states, without infringing state sovereignty.
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Carreteiro, Mateus Aimoré. « Burden and standard of proof in international arbitration : proposed guidelines for promoting predictability ». Revista Brasileira de Arbitragem 13, Issue 49 (1 avril 2016) : 82–109. http://dx.doi.org/10.54648/rba2016004.
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RESUMO: Ônus e medida da prova são dois importantes assuntos que não têm recebido a devida atenção no contexto de arbitragens internacionais. Este artigo sustenta que ônus e medida da prova são institutos probatórios – cada qual com sua própria função – disponíveis aos julgadores no processo de decisão. Árbitros não estão, em princípio, vinculados a aplicar regras probatórias da mesma forma aplicada pelas cortes nacionais. No entanto, quando ônus e medida da prova são regulados de forma específica pelas partes ou pela lei aplicável, os árbitros devem respeitar tais normais. Ao final, este artigo fornece algumas diretrizes sobre o tratamento dos assuntos e sugere como os regulamentos arbitrais podem desenvolvê-los. ABSTRACT: Burden and standard of proof are two important issues that have not received enough attention in the context of international arbitration. This paper argues that burden and standard of proof are evidentiary mechanisms – each one with its own function – available to adjudicators in the decision-making process. Arbitrators are not in principle bound to apply these evidentiary rules as applied by national courts. But when burden and standard of proof are clearly regulated in a specific way by the parties or by the applicable law, arbitrators must observe such specific rules. Eventually this paper provides some guidelines to address these issues and to furnish future developments of arbitration rules.
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Frese, Michael J. « Civil Liability for Single and Continuous Infringements ». World Competition 41, Issue 2 (1 juin 2018) : 179–95. http://dx.doi.org/10.54648/woco2018010.
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Infringement decisions by one of the European competition authorities constitute either irrefutable evidence or prima facie evidence of an antitrust violation in cases brought before a national court. As a result, evidentiary rules applicable to investigations have a direct impact on the scope of potential damages exposure in civil litigation. The legal concept of the single and continuous infringement is an example of such an evidentiary rule. This construct has alleviated the burden for authorities to prove the existence of cartels whose membership and activities may have evolved over time. However, in order to ensure that defendants are not paying for harm they have not caused or could not have prevented, appropriate limiting principles are necessary.
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Jurkeviča, Tatjana, et Kaspars Šmits. « BURDEN OF PROOF : PROCEDURAL UNDERSTANDING OF STANDARD OF PROOF ». Administrative and Criminal Justice 3, no 80 (30 septembre 2017) : 44. http://dx.doi.org/10.17770/acj.v3i80.2788.
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Topicality of a subject-matter “Burden of proof: Procedural understanding of standard of proof” is based on ambiguous understanding of the standard of proof in legal practice, that is, of the moment when a fact is considered to be proven or unproven. Goal of an article is to research legal regulation of burden of proof in civil procedure, administrative 51ADMINISTRATĪVĀ UN KRIMINĀLĀ JUSTĪCIJA 2017 3 (80) procedure, administrative offence procedure and criminal procedure law and to determine standard of proof within each of these procedures. Burden of proof, or duty to prove claimed fact, is an essential element of any evidentiary proceedings. Determination of standard of proof is ambiguously understood issue in legal theory and especially in legal practice. Ambiguous understanding of standard of proof in legal practice may cause determination of unproven facts as proven or vice versa, or even lead to finding innocent persons as guilty. Authors, by researching burden of proof in mentioned proceedings, provides an explanation on legal aspects of its standards.
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Erliyani, Rahmida, M. Hadin Muhjad et Muhammad Amin. « EXISTENCE OF SCIENTIFIC EVIDENCE IN EVIDENTIARY LAW ». Economics & ; Law 3, no 1 (30 mai 2021) : 64–76. http://dx.doi.org/10.37708/el.swu.v3i1.5.
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Environmental cases are often decided by decision of exemption because the evidence is scientific. The Criminal Procedure Code (KUHP) still adheres to conventional evidence. The judge did not receive scientific evidence. Even though, the environmental cases will not be completed without scientific evidence. Normative legal research methods are used, because scientific evidence is contained in laws and regulations including the Criminal Procedure Code. Legal materials collected were analysed to answer the problem. Legal analysis of norm obscurity is carried out by law interpretation while legal vacancies are carried out by legal construction or rechtsvinding. The results showed that environmental cases in the form of pollution and environmental damage were only proven by scientific evidence, which was an extension of evidence in the Criminal Procedure Code, which had an impact on the procedural Burden of Proof, namely the position of evidence. Scientific evidence does not stand alone but follows one of the legitimate evidences, namely expert information or proof of evidence or evidence.
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Rabeneck, Linda, R. Bryan Rumble, Jeff Axler, Anne Smith, David Armstrong, Chris Vinden, Paul Belliveau et al. « Cancer Care Ontario Colonoscopy Standards : Standards and Evidentiary Base ». Canadian Journal of Gastroenterology 21, suppl d (2007) : 5D—24D. http://dx.doi.org/10.1155/2007/705789.
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Colorectal cancer (CRC) is the most common cause of non-tobacco-related cancer deaths in Canadian men and women, accounting for 10% of all cancer deaths. An estimated 7800 men and women will be diagnosed with CRC, and 3250 will die from the disease in Ontario in 2007. Given that CRC incidence and mortality rates in Ontario are among the highest in the world, the best opportunity to reduce this burden of disease would be through screening. The present report describes the findings and recommendations of Cancer Care Ontario’s Colonoscopy Standards Expert Panel, which was convened in March 2006 by the Program in Evidence-Based Care. The recommendations will form the basis of the quality assurance program for colonoscopy delivered in support of Ontario’s CRC screening program.
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Rabeneck, L., RB Rumble, J. Axler, A. Smith, D. Armstrong, C. Vinden, P. Belliveau et al. « Cancer Care Ontario Colonoscopy Standards : Standards and Evidentiary Base ». Canadian Journal of Gastroenterology 21, suppl d (2007) : 5D—24D. http://dx.doi.org/10.1155/2007/978260.
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Colorectal cancer (CRC) is the most common cause of non-tobaccorelated cancer deaths in Canadian men and women, accounting for 10% of all cancer deaths. An estimated 7800 men and women will be diagnosed with CRC, and 3250 will die from the disease in Ontario in 2007. Given that CRC incidence and mortality rates in Ontario are among the highest in the world, the best opportunity to reduce this burden of disease would be through screening. The present report describes the findings and recommendations of Cancer Care Ontario’s Colonoscopy Standards Expert Panel, which was convened in March 2006 by the Program in Evidence-Based Care. The recommendations will form the basis of the quality assurance program for colonoscopy delivered in support of Ontario’s CRC screening program.
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Grozdanovski, Ljupcho. « In search of effectiveness and fairness in proving algorithmic discrimination in EU law ». Common Market Law Review 58, Issue 1 (1 janvier 2021) : 99–136. http://dx.doi.org/10.54648/cola2021005.
Texte intégralRésumé :
Examples of discriminatory algorithmic recruitment of workers have triggered a debate on application of the non-discrimination principle in the EU. Algorithms challenge two principles in the system of evidence in EU non-discrimination law. The first is effectiveness, given that due to algorithmic opacity, the parties in algorithmic discrimination cases do not have easy and unrestricted access to facts enabling them to support their claims. The second is fairness, insofar as the launching and unfolding of the evidentiary debate requires lifting the veil of algorithmic opacity: a colossal task, placing unrealistic burdens of proof on claimants and respondents. Algorithmic discrimination thus seems impossible to prove and, consequently, falls outside the scope of application of EU non-discrimination law. Two possible solutions are proposed. First, as regards effectiveness, a right to access evidence in favour of victims of algorithmic discrimination should be recognized, through a joint reading of EU non-discrimination law and the General Data Protection Regulation. Second, to allocate the burden of proof more proportionately, an extension of the grounds for defence of respondents could allow them to establish that biases were autonomously developed by an algorithm.
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Kegge, Rogier. « The precautionary principle and the burden and standard of proof in European and Dutch environmental law ». Review of European Administrative Law 13, no 2 (24 juillet 2020) : 113–31. http://dx.doi.org/10.7590/187479820x15930701852274.
Texte intégralRésumé :
This article offers an analysis of the application of the precautionary principle by European courts and the highest Dutch administrative courts in environmental cases. The precautionary principle is one of the leading principles in EU environmental law, but it has no unequivocal meaning. This makes the principle difficult to apply and the allocation of the burden of proof and the level of standard of proof complex matters. In the context of the allocation of the burden of proof, it is essential to make the distinction between the precautionary principle invoked as an obligation or a justification for protective measures. A realistic level of standard of proof is also essential. Without a fair allocation of the burden of proof and a realistic level of standard of proof, either the authorities or the appellants may be exposed to unequal procedural positions and unsolvable evidentiary problems. Analysis of the case law leads to the conclusion that the principle sometimes is misapplied by the Dutch administrative courts.
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Rose, Cecily. « Questioning the Role of International Arbitration in the Fight against Corruption ». Journal of International Arbitration 31, Issue 2 (1 avril 2014) : 183–264. http://dx.doi.org/10.54648/joia2014010.
Texte intégralRésumé :
International arbitration does not represent a promising mechanism for the adjudication of corruption in the context of international business transactions, although parties appear to be raising allegations of corruption with increasing frequency in arbitration proceedings. This article surveys over fifty arbitral awards, spanning many decades, and rendered by tribunals of the International Centre for Settlement of Investment Disputes and the International Chamber of Commerce, tribunals applying the arbitral rules of the United Nations Commission on International Trade Law and the Iran-United States Claims Tribunal. On the basis of this survey, the article argues that arbitral tribunals have made an unsatisfactory contribution to the adjudication of corruption allegations partly due to avoidance techniques employed by both tribunals and parties, as well as some questionable reasoning on the part of arbitral tribunals. Most significantly, however, tribunals have faced major evidentiary problems because parties have tended to provide inadequate evidentiary support for corruption allegations. Tribunals could pursue five potential solutions to these evidentiary problems, namely drawing adverse inferences, placing greater reliance on circumstantial evidence, lowering the standard of proof, shifting the burden of proof, and drawing on factual findings in domestic proceedings. Finally, this article concludes by arguing that arbitral tribunals are also ill-suited to the adjudication of such claims because the public interest in the adjudication of corruption allegations is at odds with the relatively closed, non-transparent character of arbitration.
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Cheva-Isarakul, Janepicha. « 'Diagnosing' Statelessness and Everyday State Illegibility in Northern Thailand ». Statelessness & ; Citizenship Review 1, no 2 (17 décembre 2019) : 214–38. http://dx.doi.org/10.35715/scr1002.112.
Texte intégralRésumé :
Statelessness in Thailand is primarily framed first and foremost as an issue of legibility to the state, with an assumption that once a stateless person is ‘properly seen’, due recognition will follow. This article builds on a growing body of literature that examines the limits of evidentiary approach and the burden of proving citizenship as experienced by many stateless persons around the world. I use the anthropological framework of ‘state illegibility’ to encapsulate the systemic violence and burden placed on stateless persons by the state’s opaqueness and inscrutable, contradictory and unpredictable bureaucratic practices. Through three ethnographic accounts in Thailand, I interrogate various forms of state illegibility and their implications. I argue that by not recognising state illegibility, statelessness risks being reduced to an individualised legal status issue, rather than being acknowledged as a symptom of systemic discrimination.
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Duggal, Kabir, et Wendy W. Cai. « Principles of Evidence in Public International Law as Applied by Investor-State Tribunals : Burden and Standards of Proof ». Brill Research Perspectives in International Investment Law and Arbitration 2, no 2 (2 janvier 2019) : 1–52. http://dx.doi.org/10.1163/24055778-12340005.
Texte intégralRésumé :
AbstractPrinciples of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.
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Ng, C. Y., et K. B. Chuah. « Environmental Impact Evaluations on Product Design Alternatives Using the Combined Evidential Reasoning with Fuzzy Set ». Journal of Environmental Assessment Policy and Management 19, no 03 (septembre 2017) : 1750014. http://dx.doi.org/10.1142/s1464333217500144.
Texte intégralRésumé :
Owing to the rise of societal awareness and hence governmental quest for environmental conservation worldwide, environmental friendliness in products has become a critical design consideration for all manufacturers during new product development. Life Cycle Assessment (LCA) is a comprehensive method to quantitatively assess the environmental burdens of products or services. However, such studies are difficult to carry out at the early product development process because of uncertain or limited product information. Also, LCA is a time and resource-consuming methodology. This paper proposes a shortcut approach to support product designers to carry out the environmental impact evaluations especially in the initial product development stage. This paper discusses the key challenges of implementing environmental impact evaluation in new product development. The combined Evidential Reasoning (ER) and Fuzzy Set Theory (FST) approach is applied to handle the uncertain information of the environmental data and deficiency of LCA. The result demonstrates the superiority of the combined ER and FST for evaluating several design alternatives while the uncertain information has been considered.
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Egorova, Olga. « Challenging the decision of the financial commissioner in court : distribution of the burden of proof ». SHS Web of Conferences 141 (2022) : 02004. http://dx.doi.org/10.1051/shsconf/202214102004.
Texte intégralRésumé :
This article discusses evidentiary activities with an insurance (financial) company contesting the decision of the financial commissioner, adopted by him at the request of a consumer of financial services at the pretrial stage of resolving an auto insurance conflict. Comparative legal analysis, system-structural analysis, and synthesis make up the methodological basis of the study. The relevance of the study, because of the legal nature of cases challenging the decision of the financial commissioner, reflecting a qualitatively “new” format of the mechanism for protecting the rights of this participant in auto insurance legal relations in the Russian Federation, is because proving in any civil case makes up the “core” of all judicial activities to resolve civil law conflict. The author evaluates implementing the legally established paradigm of adversarial litigation in the consideration and resolution of this category of cases, because the subject of judicial review is the decision of a public competent person, who, as a general rule, is charged with proving the legality and validity of his decision. The article explores the feasibility of implementing an “active” role of the court in implementing this mechanism for protecting the rights of insurance companies.
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Durieux, Jean-François. « The Many Faces of "Prima Facie" ». Refuge : Canada's Journal on Refugees 25, no 2 (1 septembre 2008) : 151–63. http://dx.doi.org/10.25071/1920-7336.26037.
Texte intégralRésumé :
The majority of the world’s refugees have secured a legal status without resort to an individual examination of their claims. The practice of “group” determination, particularly in Africa, is interesting in several aspects, not least in that it allows a real-time assessment of a need for international protection. While these positive aspects should not be lost as many jurisdictions in the developing world are equipping themselves with individual asylum procedures, it is equally important to clarify, and hopefully to harmonize, the procedural and evidentiary standards applicable to group determination. How presumptions operate—including their rebuttal or removal—is a question worth examining, and not only with regard to refugee status determination (RSD) in mass influx situations. Legal presumptions and other evidentiary shortcuts have also been introduced into individual RSD procedures in industrialized states. These include mechanisms that are highly problematic from a protection point of view, such as the “safe country of origin” presumption of a “manifestly unfounded” claim. However, administrative bodies and courts have also, from time to time, used some form of prima facie admission of evidence in order to lighten the burden of asylum applicants, while speeding up the RSD process. Furthermore, this article argues that extralegal presumptions, based on implicit value judgments about national or subnational groups, almost invariably colour the interviewing and decision-making processes in individual cases. Th is finding makes it all the more necessary : to (i) to re-assess the signifi cance of “risk-group affi liation” as an element of the refugee defi nition; and (ii) formally recognize the role of evidentiary shortcuts in RSD, and recommend appropriate standards for their operation.
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Hathaway, James C., et Audrey Macklin. « Should We Presume State Protection ? » Refuge : Canada's Journal on Refugees 32, no 3 (23 novembre 2016) : 49–53. http://dx.doi.org/10.25071/1920-7336.40407.
Texte intégralRésumé :
Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and misapplication of the Supreme Court’s dictum by lower courts.
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DOWNES, CHRIS. « Worth Shopping Around ? Defending Regulatory Autonomy under the SPS and TBT Agreements ». World Trade Review 14, no 04 (30 mars 2015) : 553–78. http://dx.doi.org/10.1017/s1474745615000178.
Texte intégralRésumé :
AbstractWith its stringent requirements for scientific evidence, the SPS Agreement is commonly considered a greater constraint on WTO Members' regulatory autonomy than the TBT Agreement. It is consequently feared that Members may ‘forum shop’ by reconstructing SPS measures as TBT regulations and hereby circumvent WTO obligations. This article revisits these assumptions in the light of recent TBT jurisprudence and explores the respective challenges of defending policy preferences under the two technical regimes. It argues that in some respects – the characterization of a measure and the chosen level of protection – the SPS Agreement provides a securer basis for Members to defend regulatory choices. While evidential burdens are more explicitly demanding under SPS rules, the challenge of justifying a TBT measure's rationality should not be understated. In light of these reflections, this article concludes that ‘forum shopping’ is an unpromising strategy for protecting controversial SPS measures.
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Kouvaras, Ilias. « Evidentiary Burden of Proof regarding Exclusion Grounds for Asylum : The Case of the Turkish Military Asylum Seekers in Greece ». International Journal of Refugee Law 31, no 4 (décembre 2019) : 567–79. http://dx.doi.org/10.1093/ijrl/eez031.
Texte intégralRésumé :
Abstract Relations between Turkey and Greece were recently put to the test by the case of eight Turkish military personnel who fled their country by helicopter, following an attempted coup d’état on 15 July 2016. They landed in Greek territory, where they claimed political asylum. The legal dimension of the complex asylum procedures turned out to be decisive to the final outcome of the case. The judgment by the Greek Council of State integrates the international perception of onus of proof in its review of the exclusion grounds for applicants for international protection.
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Murray, Laura, et Darrel H. Pearson. « The Landmark Decision in Jockey Canada Company v. President of Canada Border Services Agency : Lessons for Compliance with Canadian Customs Valuation Requirements ». Global Trade and Customs Journal 8, Issue 7/8 (1 juillet 2013) : 209–16. http://dx.doi.org/10.54648/gtcj2013029.
Texte intégralRésumé :
This paper analyses the reasons for the Canadian International Trade Tribunal's decision in Jockey Canada Company v. President of Canada Border Services Agency respecting Canadian customs valuation compliance in related party cross-border transactions. It offers practical insights into the precautions that should be taken by multinational companies when structuring import transactions in order to satisfy their evidentiary burden to prove the accuracy of declared values for duty, including the maintenance of probative supporting documentary evidence and the need for customs valuation oriented contemporaneous documentation such as granular transfer pricing studies and agreements between related parties that discretely cover intercompany payments. The application of the transaction value method when pricing is based on a formulaic transfer pricing policy is also examined.
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Kullmann, Miriam. « ‘Platformisation’ of work : An EU perspective on Introducing a legal presumption ». European Labour Law Journal 13, no 1 (6 décembre 2021) : 66–80. http://dx.doi.org/10.1177/20319525211063112.
Texte intégralRésumé :
For some time now, the European Commission has stressed the need to address the ongoing misclassification of employment status in platform work and has thus considered introducing a rebuttable presumption of employment status or a reversal of the burden of proof. This contribution focuses on the benefits and limitations of introducing a rebuttable legal presumption in EU labour law as an evidentiary means to improve the working conditions of platform workers. In doing so, some general remarks on rebuttable legal presumptions will be made, while also offering some comparative legal insights, before exploring their potential benefits and limitations in the context of EU labour law in general and platform work in particular. This contribution will finish with an analysis of how such a presumption could be integrated in the current EU social acquis.
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Flood, Colleen M. « THE EVIDENTIARY BURDEN FOR OVERTURNING GOVERNMENT'S CHOICE OF REGULATORY INSTRUMENT : THE CASE OF DIRECT-TO-CONSUMER ADVERTISING OF PRESCRIPTION DRUGS ». University of Toronto Law Journal 60, no 2 (avril 2010) : 397–424. http://dx.doi.org/10.3138/utlj.60.2.397.
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O'Day, K., E. Salamanca-Brosig, TS Regan, K. Boswell, B. Nightengale et B. Seal. « PRS42 ASTHMA DISEASE BURDEN, EVIDENTIARY REQUIREMENTS, AND FORMULARY CONSIDERATIONS AMONG MANAGED CARE AND EMPLOYER DECISION MAKERS REGARDING INHALED CORTICOSTEROIDS (ICS) ». Value in Health 11, no 3 (mai 2008) : A282. http://dx.doi.org/10.1016/s1098-3015(10)70890-1.
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de La Fayette, Louise. « ITLOS and the Saga of the Saiga : Peaceful Settlement of a Law of the Sea Dispute ». International Journal of Marine and Coastal Law 15, no 3 (2000) : 355–92. http://dx.doi.org/10.1163/157180800x00163.
Texte intégralRésumé :
AbstractThe Saiga No. 2 case was the first judgment on the merits by the International Tribunal for the Law of the Sea, and the final phase of a dispute with a complicated procedural history, using several of the provisions of Part XV of the LOS Convention. The case raised a number of procedural and evidentiary issues, relating to the presentation of witnesses, the burden of proof and the standard of proof. It clarified the meaning of "genuine link", confirmed the law on hot pursuit, settled the law on use of force in the arrest of foreign vessels, and made clear that coastal states did not enjoy customs jurisdiction in the EEZ, while leaving aside the question of jurisdiction over offshore bunkering. The Tribunal is to be commended for not permitting technical issues to prevent it from doing justice in the case.
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Mungan, Murat C. « Justifications, Excuses, and Affirmative Defenses ». Journal of Law, Economics, and Organization 36, no 2 (25 janvier 2020) : 343–77. http://dx.doi.org/10.1093/jleo/ewz023.
Texte intégralRésumé :
Abstract A defendant who admits to having committed an offense may nevertheless be acquitted if he can provide a legally cognizable justification or excuse for his actions by raising an affirmative defense. This article explains how affirmative defenses generate social benefits in the form of avoided unnecessary punishment. It then asks what kind of evidentiary standards must be used in order to balance these benefits against potential social costs arising from frivolous defense claims. It thereby provides an economic rationale for the uniformity across US jurisdictions in allocating the burden on the prosecution to prove the commission of the offense, as well as the variation across states in the standards of proof they use in determining the validity of affirmative defenses. The analysis also explains why mere assertions of undeterrability should not be considered as affirmative defenses. (JEL K00, K14, K40, K41, K42)
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Steynberg, L. « Gebeurlikhede en die Bewyslas in die Deliktuele Skadevergoedingsreg // Contigencies and Onus in the Delictual Law of Damages ». Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 10, no 1 (4 juillet 2017) : 140. http://dx.doi.org/10.17159/1727-3781/2007/v10i1a2795.
Texte intégralRésumé :
Contingencies can be described as uncertain circumstances of a positive or negative nature which, independent of the defendant’s conduct and if they should realise, would probably influence a person’s health, income, earning capacity, quality of life, life expectancy or dependency on support in future or could have done so in the past, and which consequently must be taken into account in a fair and realistic manner in the quantification of damages. Essential to this definition is the element of certainty or uncertainty with which an incident can be predicted that is linked to the degree of probability that the occurrence will take place or would have taken place if it had not been for the accident. Two particular theories could be relevant in the establishment of the degree of probability, namely the Pascalian model in which a pure mathematical approach is followed and the Baconian model in which an inductive approach is followed. Because the Baconian model is less stringent, it appears to be more suitable for determining and applying contingencies. In civil law the burden of proof rests upon the plaintiff and the expected measure of proof is a preponderance of probability. It has become clear that the terms 'burden of proof' and 'measure of proof' according to their strict evidentiary meaning, do not fit naturally into the theory of proof in the case of contingencies. If the amount of damages has to be adjusted for contingencies, it does not mean necessarily that the burden of proof in respect of the adjustment always rests upon the plaintiff. In principle, one can say that the plaintiff must adduce evidence of contingencies that can increase damages and the defendant of contingencies that can reduce damages. The measure of proof also is relaxed in cases where uncertainty prevails, for instance in the case of future loss.
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Ma, Zhenyu, Hui Huang, Guanghui Nie, Vincent M. B. Silenzio et Bo Wei. « Attitude towards Mental Illness among Primary Healthcare Providers : A Community-Based Study in Rural China ». BioMed Research International 2018 (30 septembre 2018) : 1–6. http://dx.doi.org/10.1155/2018/8715272.
Texte intégralRésumé :
Objective. There are no studies that have explored attitudes towards mental illness that are held by rural primary healthcare (PHC) providers. The aim of this study was to conduct evidential and comparative research about attitudes towards mental illness among primary healthcare providers from different mental health service models in China rural communities.Methods. A self-administered questionnaire was conducted with a total of 361 rural primary healthcare providers engaged in mental health service delivery.Results. Total attitude score mark of rural primary healthcare providers shows that most PHC providers still held pessimistic and negative attitude towards mental illness patients. 71.3% of respondents agreed that “the mental patients often impulsively perform destruction of property”; 72.9% agreed that “mental patients are burdens to the families and society.” There are also positive correlations between attitudes and abilities of primary healthcare providers to mental illness.Conclusion. This study provides baseline evidence that primary healthcare providers in rural China hold negative attitudes towards mental illness. It is critical to improve negative attitudes and understanding about the importance of the management of severe mental illness among rural primary healthcare workers in mental health services. We should take comprehensive methods to enrich primary healthcare providers’ professional knowledge about mental illness and eliminate discrimination and inappropriate perception against the mental illness.
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Stein, Alex. « On the Epistemic Authority of Courts ». Episteme 5, no 3 (octobre 2008) : 402–10. http://dx.doi.org/10.3366/e1742360008000488.
Texte intégralRésumé :
ABSTRACTThis paper uses Carl Ginet's concept of “disinterested justification” to identify the boundaries of the epistemic authority of courts. It claims that courts exercise this authority only in the “interest-free” zone, in which their determinations of disputed facts’ probabilities can be made and justified on epistemic grounds alone. This is not the case with the “interest-laden” domain, where courts allocate risks of error under conditions of uncertainty. This domain is controlled by the risk-allocating evidentiary rules: burdens of proof, corroboration, hearsay, opinion, character, and others. These rules are driven by moral and political, rather than epistemic, reasons. Their role is to allocate the risk of error among plaintiffs, defendants, and prosecution by setting forth probability thresholds for findings of fact and the criteria for adequacy of the evidence upon which those findings can be made.
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Kalt, Susan E., et Jonathan A. Geary. « Typological Shift in Bilinguals’ L1 : Word Order and Case Marking in Two Varieties of Child Quechua ». Languages 6, no 1 (4 mars 2021) : 42. http://dx.doi.org/10.3390/languages6010042.
Texte intégralRésumé :
We compare speech production and find morphosyntactic change among children and adolescents speaking two closely related varieties of Quechua in Cuzco, Peru, and Chuquisaca, Bolivia. Quechua languages traditionally employ Object-Verb (OV) word order in main clauses, but robust case marking permits other orders, especially to focalize new information through constituent fronting. In Chuquisaca, but not Cuzco, we find that schoolchildren often omit the accusative suffix -ta from direct objects while retaining a prosodic trace of -ta. In other varieties, loss of accusative marking is associated with a shift towards Verb-Object (VO) word order, as in Spanish. However, we find that Chuquisaqueños use more canonical OV and possessor-possessed order in declarative sentences than do Cuzqueños, who employ a wide range of word orders at the sentence level and deviate from the possessor-possessed norm for Quechua noun phrases. Our finding of more rigid word order in Chuquisaca highlights the complex factors contributing to typological shift in word order and morphology: Omission of case morphology places a greater burden on word order to identify grammatical roles. Further, we find that Chuquisaqueño schoolchildren alone have begun to use huk, “one,” to mark indefiniteness, perhaps to replace determiner-like functions ascribed to -ta and to obsolescent markers such as evidentials.
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Johansyah, Johansyah. « PEMBUKTIAN DALAM SENGKETA TATA USAHA NEGARA ». Solusi 17, no 3 (1 septembre 2019) : 336–57. http://dx.doi.org/10.36546/solusi.v17i3.221.
Texte intégralRésumé :
The purpose of this study is to find out and analyze the evidentiary process at the trial in a State Administration dispute involving evidence, the burden of proof and evaluation of the evidence carried out in the State Administrative Court. This type of research is normative legal research. Proof is a procedure for establishing evidence of a fact in a State Administration case to be used as a basis for consideration in passing a decision. In general explanation of Law Number. 5 of 1986 stated that the teaching of proof used in the State Administrative Court is the teaching of free proof, in the State Administrative Court, the judge plays a more active role in the trial process to obtain material truth. An administrative suit does not in essence delay the implementation of the disputed State Administration Decree. The judge has the authority to provide an assessment of the results of evidence in examining, deciding, and resolving State Administration Disputes based on Article 107 of Law Number 5 of 1986.
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Ramadan, Moussa Abou. « Divorce Reform in the Sharia Court of Appeals in Israel (1992-2003) ». Islamic Law and Society 13, no 2 (2006) : 242–74. http://dx.doi.org/10.1163/156851906776917570.
Texte intégralRésumé :
In this article, I study Article 130 of the Ottoman Family Law, which is still applied in Israel, with special attention to developments within the Sharia Court of Appeals between the years 1992 and 2003. I argue that this Court has encouraged reform regarding the issue of niza wa-shiqāq (quarrel and disagreement). This reform has four main components. First, it entails a weakening of the patriarchal concept that limits a woman's role within Muslim society, her authority over her body, and her movements. Second, it eases the burden of proof by lowering evidentiary requirements. Third, it improves the procedure of arbitration by better defining the suitability of the arbitrators and supervising the methods of their work. Fourth, it enables the Sharia Court to nominate arbitrators and control their decisions. This reform has improved women's rights to divorce and has made divorce a relatively easy option. The reform also makes it easier for both men and women to obtain divorce, particularly as compared to other religious minorities in Israel.