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1
Abdullah, Abdullah, and Muhammad Hatta. "The Application of the Burden of Proof Concept in Indonesia: A Comparative Study." SASI 28, no. 3 (October 13, 2022): 458. http://dx.doi.org/10.47268/sasi.v28i3.1045.
Повний текст джерелаАнотація:
Introduction: One of the reasons for a reverse proof system is the difficulty of proving the offenses committed by certain perpetrators of a criminal offense, such as corruption and money laundering. Thus, the government issues the legal policy to apply a reverse burden of proof to solve this problem.Purposes of the Research: This study aims to analyze the application of the reverse burden of proof in Indonesian and Islamic criminal law.Methods of the Research: This research is legalistic, doctrinal, or normative, using a comparative law approach to compare the application of a reverse burden of proof in Indonesian criminal law and Islamic criminal law.Results of the Research: The application of a reverse burden of proof in Indonesia is limited and balanced (balanced probability of principles) as regulated in Article 37 of Law no. 31 of 2019 in conjuction with Law No. 20 of 2000 concerning the Eradication of Corruption Crimes and Article 35 of Law no. 8 of 2010 concerning the Prevention and Eradication of the Crime of Money Laundering. In Islamic criminal law, the application of t a reverse burden of proof has long been carried out, as seen in Surah Al-Nisa verse 135 and the story of Prophet Yusuf's proof of Zulaikha's accusation in Surah Yusuf verses 24-29, and several hadiths of the Prophet Muhammad. These two legal systems are similar in terms of the application of a reverse burden of proof that is only applied to certain cases, such as corruption and money laundering. However, the difference is that the application of a reverse burden of proof in Indonesian criminal law is limited and balanced. In contrast, the principle of a reverse burden of proof against corruption cases in Islamic criminal law is absolute.
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Hatta, Muhammad. "Ratio Legis Penerapan Beban Pembuktian Terbalik Di Indonesia." Istinbath : Jurnal Hukum 18, no. 1 (June 30, 2021): 76–103. http://dx.doi.org/10.32332/istinbath.v18i1.3288.
Повний текст джерелаАнотація:
The reverse proof is the burden of proof to the suspect of a crime. In principle, the application of the reversed burden of proof is against the universal law of proof and is not following the presumption of innocence. However, the reverse burden of proof contained in the Law on the Eradication of Criminal Acts of Corruption, and the Law on the Prevention and Eradication of the Crime of Money Laundering, with a Legis Ratio of the two types of crimes classified as white color crimes, and extraordinary crimes, is right. Because it can be ascertained that, when the verification process takes place, law enforcement will have difficulty in proving the guilt of the perpetrators of the crime. In Indonesia, the application of the reverse burden of proof is applied to corruption and money laundering crimes which are limited to the Eradication of Corruption Crimes and Money Laundering Crimes. In Islamic law, the application of the reverse burden of the proof system is included in the ta'zir category which is based on government policy (ulul amri). The inverse burden of proof system is implied in the Qur'an, Surah Yusuf, Verses 26-29. However, in applying the reverse proof system, the jurists use istihsan in making ijtihad on contemporary social problems. Thus, both in the perspective of general law and Islamic law, the reverse proof is something that is specifically allowed, for criminal cases where it is estimated that there will be difficulties in proving it. Keywords: Ratio Legis Reverse Proof System, Indonesia, Comparative Legal Study
3
S, Suaidi. "Formulasi Sistem Pembuktian Terbalik Tindak Pidana Korupsi di Indonesia dalam Perspektif Hukum Islam." Al-Adillah: Jurnal Hukum Islam 1, no. 2 (June 15, 2021): 63–76. http://dx.doi.org/10.61595/aladillah.v1i2.203.
Повний текст джерелаАнотація:
Corruption have widespread and even became a culture of Indonesia that the government set up a new system, known as Reversal Burden Of Proof. Even though the model is considered to be contrary to the fundamental principle of the rule of law, but in Islamic law and the evidence, it is legally seen as a necessity to eradicating corruption. It is based on the demands and the welfare of Reversal Burden Of Proof Formulation.
4
Khalid, Nasirullah. "Presumption of Innocence in the Islamic Law." Volume-3: Issue- 1 (January) 3, no. 1 (January 14, 2021): 11–16. http://dx.doi.org/10.36099/ajahss.3.1.2.
Повний текст джерелаАнотація:
The principle of the Presumption of Innocence is one of the main principles of all modern legal systems. It is also an important right of the accused mentioned in the human rights documents. The principle simply means that an accused considered innocent until proved guilty by a competent court. Using the descriptive-analytical method, this article studies this principle from the Islamic Law perspective exploring its meaning, basis, and exceptions. The article finds that Islamic law recognizes this principle in its highest sources, That are the Holy Quran and Hadith (sayings and actions of the Holy Prophet Mohammad). The Prophet Mohammad (PBUH) himself and so Muslim jurist applied this principle in both civil and criminal cases. Furthermore, the article identifies two main exceptions of the Presumption of Innocence in Islamic law that are: transferring burden of proof from the plaintiff to the accused when there are reasonable doubts against him/her such as strangely enrichment of a public servant after employment and the second exception is the precautionary imprisonment; however the Muslim jurist have different views regarding the application of the precautionary imprisonment which shows their doubts towards this measure specially when there are not enough proofs.
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Mamedov, Yusif. "Islamic criminal procedure law: human rights issues." Grani 23, no. 10 (October 30, 2020): 47–57. http://dx.doi.org/10.15421/172092.
Повний текст джерелаАнотація:
It has been established that harsh Islamic punishments are practically not applied due to the high burden of proof and the need to involve an exhaustive number of witnesses. It has been proven that the Islamic criminal justice system provides the accused with basic guarantees. It is noted that according to Sharia, Islamic crimes are divided into three categories: Hadd, Qisas and Tazir. It is noted that Islamic criminal law provides that the accused is not guilty if his guilt is not proven. It is noted that equality before the law is one of the main legal principles of the Islamic criminal model, as all persons are equal before the law and are condemned equally regardless of religious or economic status (lack of immunity). There are four main principles aimed at protecting human rights in Islamic criminal law: the principle of legality (irreversible action), the principle of presumption of innocence, the principle of equality and the principle of ultimate proof. In addition, the Islamic criminal justice system provides defendants with many safeguards, which are always followed during detention, investigation, trial and after trial. It is established that such rights are: 1) the right of every person to the protection of life, honor, freedom and property; 2) the right to due process of law; 3) the right to a fair and open trial before an impartial judge; 4) freedom from coercion to self-disclosure; 5) protection against arbitrary arrest and detention; 6) immediate court proceedings; 7) the right to appeal. It is noted that if a person is charged, he/she has many remedies It is noted that the trial must be fair, in which the qadi (judge) plays an important role. It has been established that, in addition to the procedural guarantees, the qualifications and character of the qadi, as well as the strict requirements of Islamic rules of proof, are intended to ensure a fair trial in the case of the accused. Adherence to these principles has been shown to indicate that the rights of the accused are fully guaranteed under Islamic criminal law.
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Nawang, Nazli Ismail, Mohd Lotpi Mohd Yusob, and Aminuddin Mustaffa. "Anonymous Online Offenders – Presumption of Innocence or Presumption of Guilt? A Comparative Analysis between the Evidence Act 1950 and the Islamic Criminal Law." Jurnal Islam dan Masyarakat Kontemporari 19 (September 11, 2018): 49–60. http://dx.doi.org/10.37231/jimk.2018.19.0.282.
Повний текст джерелаАнотація:
Anonymity is perhaps the most valued feature of the Internet as its users are able to conceal their true identities or assume pseudonyms in the cyber world. Anonymity may be good for freedom of speech as any speakers could freely express their thoughts without the fear of being identified (though not impossible). Unfortunately, anonymity poses great challenges to law enforcement agencies as they would face difficulty in tracing cyber offenders. For that reason, the Malaysian Parliament has passed a new section 114A of the Evidence Act 1950 that has the effect of shifting the burden of proof on the alleged offenders to prove his innocence. This provision seems to be in contrast with the legal maxim of ‘semper necessitas probandi incumbit ei qui agit’ which means ‘he who asserts must prove’. This same principle has also been adopted in Islamic criminal law as the Islamic legal maxim has explicitly stated that ‘the onus of proof is upon the claimant, and the taking of an oath is upon him who denies’. As such, this paper attempts to scrutinise the approach that has been adopted by judges in interpreting and applying this new law. Further, a comparative analysis with Islamic criminal law will be made in order to ascertain whether such principle could be applied in certain cases since cyber criminals are hardly traceable or identifiable. The study is largely based on doctrinal research as it is primarily concerned with the review of relevant decided cases and statutory provisions as well as text books, journal articles and seminar papers. To sum up, it is submitted that the new law does not amount to an automatic presumption of guilt as the prosecutors are still required to prove the existence of relevant basic facts before the accused is mandated to prove his innocence.
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Abdullah, Abdullah. "Juridical Study of Corruption Crime in Indonesia: A Comparative Study." International Journal of Law, Environment, and Natural Resources 2, no. 1 (August 19, 2022): 45–61. http://dx.doi.org/10.51749/injurlens.v2i1.22.
Повний текст джерелаАнотація:
Corruption is an act of deviation that is against the law and the principle of justice (al-`adalah). Corruption with all its negative impacts produces various distortions in the life of the nation and state. In Islamic law, Corruption (jarimah) Crime is prohibited in the Qur'an and al-hadith. Fingers of corruption fall into the category of ta'zir punishment where the type of punishment is determined by the government (ulil amri) through a court decision so that perpetrators of corruption can be sentenced to imprisonment, fines, cut-offs hands (had), or even death if the government so wishes. In the aspect of Indonesian criminal law, the eradication of corruption is regulated in Law No. 31 of 1999 jo. Law No. 20 of 2001. This provision can ensnare perpetrators of corruption in both the private and public sectors. To increase the effectiveness of law enforcement against corruption, the government established the institution of the Corruption Eradication Commission (KPK) and the Court of Corruption. In addition, to facilitate the process of proving corruption offenses, this provision applies a reverse burden of proof.
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Halimi, Sonia. "Arabic Legal Phraseology in Positive Law and Jurisprudence: The Historical Influence of Translation." Comparative Legilinguistics 46, no. 1 (June 1, 2021): 37–64. http://dx.doi.org/10.2478/cl-2021-0007.
Повний текст джерелаАнотація:
Abstract The present study examines Arabic legal phraseology formation from the standpoint of positive law and jurisprudence. It claims that phraseological constructions in Arabic legislative and statutory texts are largely influenced by the translation process of Roman law texts. However, scholarly literature still relies to some extent on formulae used in the Islamic jurisprudence. To illustrate this, three examples of legal principles anchored in Islamic jurisprundence, known as legal maxims, are subjected to a comparative analysis and discussed along with their corresponding expressions in positive law in modern-day Arabic. Ultimately, the purpose of this paper is twofold: firstly, to demonstrate that the phraseology present in many Arabic positive laws is fully adapted to corresponding formulations in the Roman law, steming from a historical translation process that accompanied the codification movement in the beginning of the 20th century; secondly, to emphasize the significance of textual genre awareness in legal translation. Concretely, the introductory section provides an overview of recent studies that have addressed legal phraseologisms. It is followed by a section on the historical role of translation in the construction of certain phraseologisms. The general legal principles of (a) burden of proof, (b) presumption of innocence, and (c) the pacta sunt servanda principle are then examined in order to shed light on the influence of both the Civilist tradition and Islamic jurisprudence on the use of legal Arabic today, as well as to demonstrate how the translation of phraseologisms is dependent on the parameters of genre. The analysis leads to the conclusion that proper use of phraseologisms, whether in drafting or translation, is closely linked to knowledge of phraseology formation and the historical influence of translation.
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Ath Thariq, M. Alwi, M. Zuhdi Imron, and Zuraidah Azkia. "TINJAUAN HUKUM ISLAM TERHADAP PENGGUNAAN UANG YANG DIBENTUK DALAM HIASAN SEBAGAI MAHAR PERNIKAHAN." Usroh: Jurnal Hukum Keluarga Islam 6, no. 1 (June 30, 2022): 16–33. http://dx.doi.org/10.19109/ujhki.v6i1.12187.
Повний текст джерелаАнотація:
This research is motivated by the use of money formed in decoration as a wedding dowry. The purpose of this study is to determine the factors that cause people to use money made as decorations as a marriage dowry and to find out how Islamic law reviews the use of money formed by hisan as a marriage dowry. The method used in this research is a qualitative descriptive method with the type of field research. Based on the results of the study, it can be concluded that first, the factors that cause people to use decorative money as a wedding dowry, among others, because it has unique elements, follows trends, the number of craftsmen for decorative dowry money, can be used as decoration and can be used as a keepsake. Second, a review of Islamic law on the use of money made as decorations as a dowry, among others, based on the hadith of the prophet from Sahal bin Sa'ad al Sa'adiy in the form of muttafaq 'alaih, that the dowry is an obligatory thing in a marriage and does not burden the husband in marriage. giving a dowry to his wife, even from an iron ring and memorizing the Qur'an is allowed as a dowry. Furthermore, based on the rules of fiqhiyyah, the law of origin of something is permissible, until there is a proof that shows its prohibition. In addition, the dowry of money can also be useful at a time when a husband and wife need funds so that they can take the money from within the frame to meet their needs. Keywords: Islamic Law; Dowry; Money
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Kiralfy, Albert. "The Burden of Proof." Arab Law Quarterly 4, no. 1 (February 1989): 84. http://dx.doi.org/10.2307/3381450.
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Parisi, Francesco, Daniel Pi, and Alice Guerra. "Access to evidence in private international law." Theoretical Inquiries in Law 23, no. 1 (February 1, 2022): 77–96. http://dx.doi.org/10.1515/til-2022-0004.
Повний текст джерелаАнотація:
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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Ardiansyah, Ardiansyah, and Atma Suganda. "BURDEN OF PROOF OF CUSTOMS VALUATION DISPUTES IN INDONESIAN TAX COURT." International Journal of Law, Government and Communication 5, no. 20 (September 15, 2020): 100–111. http://dx.doi.org/10.35631//ijlgc.520008.
Повний текст джерелаАнотація:
In applying the burden of proof of customs valuation disputes in the Indonesian tax court, some judges place the burden of proof to the importers, while others distribute the burden of proof to the customs administration. So, the legal problem that occurred in this study is regarding a different interpretation in applying the burden of proof. To solve that problem, it is necessary to research how the burden of proof applies in Tax Law through a comparative legal approach and research on how customs law regulates the burden of proof through a statute approach on WTO law and Indonesian customs law. The research results lead to one conclusion that the burden of proof can be shifted to companies or taxpayers if they cannot complete the evidence and documents required by tax or customs administration. However, the provision regarding the burden of proof for customs valuation is not clearly regulated in Indonesian Customs Law. Furthermore, the different interpretation in distributing the burden of proof among the judges is caused by the doctrine of freedom of proof based on tax court procedural law.
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Padfield, Nicola. "THE BURDEN OF PROOF UNRESOLVED." Cambridge Law Journal 64, no. 1 (March 24, 2005): 17–20. http://dx.doi.org/10.1017/s000819730526676x.
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Bni Yaseen, Sharhabeel Ali Jabber. "General conditions of proof in Islamic law." Journal of Social Sciences (COES&RJ-JSS) 8, no. 3 (July 1, 2019): 481–94. http://dx.doi.org/10.25255/jss.2019.8.3.481.494.
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Krok, Michał. "Realizacja zasady prawdy w postępowaniu cywilnym a ciężar dowodu i ciężar argumentacji." Acta Universitatis Lodziensis. Folia Iuridica, no. 73 (January 1, 2014): 129–45. http://dx.doi.org/10.18778/0208-6069.73.09.
Повний текст джерелаАнотація:
The purpose of the paper is to analyze, how rules of the burden of proof and rules of the burden of argumentation justify a thesis, which is found as a true statement by court. Two concepts of the truth discussed in the Polish civil procedure (the objective/material truth and the judicial truth) are compared in connection with the rules of the burden of proof and the burden of argumentation. The rules of burden of proof and the rules of the burden of argumentation are constitutive rules. They state under what conditions a thesis counts as justified. The justification of a decision of applying law based on the rules of the burden of proof or rules of the burden of argumentation is institutional, not substantial.
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Wiriadinata, Wahyu. "Corruption and Reversal Burden of Proof." Journal of Public Administration and Governance 4, no. 1 (March 19, 2014): 62. http://dx.doi.org/10.5296/jpag.v4i1.5447.
Повний текст джерелаАнотація:
This paper, entitled Corruption and Reversal Burden of Proof, was intended to deal with a question on the extent of the effectiveness of a reversal burden of proof as stipulated in positive (applicable) Indonesia law, that is, as provided for in Law Number 31 of 1999 on Eradication of Corruption Crime. Then, a problem that rose next was: could the application of reversal burden of proof in proving a corruption crime case prevent or reduce or even eliminate totally corruption crimes in Indonesia? This research built on a theoretical frame of thought from Roscoe Pound, who maintains that law is a tool of social engineering. This concept was cited by Muchtar Kusumaatmadja, who adapted it to Indonesia conditions and adjusted it to be law as a social engineering medium. Engineering is meant here as a transformation of the thinking ways of people from traditional thinking ways to modern ones. Law should be made as a means in resolving the entire problems that emerge between and among community, including corruption crimes. One of the things that needs to be changed is a law of proof law system, that is, from a conventional proof system to be a reversal one. This paper was written by a juridical-normative method, that is, by studying legislations, be they are contained in laws and those contained in literature/books on legal science, particularly legislations related to reversal burden of proof. Then, the results, in a form of juridical aspect, was written in a descriptive-analytical form. The overall conclusion of this research was an answer of the problems posed above, that is: Corruption crimes have been continuously occurring till now in Indonesia. Thus, Law Number 31 of 1999, particularly Article 37, has not been effective yet in eradicating corruption crimes.
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Saifuddin, Suhaizad, Hanifah Haydar Ali Tajuddin, Mohd Azhan Yahya, Mohamad Rizal Abd Rahman, and Fatimah Yusro Hashim. "EXAMINING THE APPLICATION OF STANDARD OF PROOF IN CRIMINAL CASES: A COMPARATIVE ANALYSIS OF ISLAMIC LAW AND COMMON LAW IN MALAYSIA." Malaysian Journal of Syariah and Law 12, no. 1 (March 31, 2024): 11–22. http://dx.doi.org/10.33102/mjsl.vol12no1.491.
Повний текст джерелаАнотація:
In criminal litigation, evidence plays a very significant role in ensuring that justice is delivered. Nevertheless, justice cannot be achieved without the correct application of standard of proof. Failure to apply the correct standard of proof could result in miscarriage of justice. This paper examines the concept of standard of proof from the Islamic and common law perspectives. It also analyses the similarities and differences in the application of standard of proof under both legal systems. This study is a doctrinal research and utilises qualitative methods. The primary and secondary data are gathered using the documentation method obtained from library, legal statutes and reported cases. The gathered data are then further analysed using content analysis method. Findings of this study show that there are similarities and differences in the concept of standard of proof in criminal cases under both legal systems. In spite of the similarities, several applications under the common law should not be referred or utilised in litigating Syariah criminal cases. This paper suggests that the standard of proof under Islamic law is to be harmonised with the common law in the prosecution of criminal cases in the Syariah courts. The research conducted contributes towards the knowledge in distinguishing between the Islamic and common law principles particularly for countries that practise Islamic criminal law.
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Spottswood, Mark. "Proof Discontinuities and Civil Settlements." Theoretical Inquiries in Law 22, no. 1 (January 1, 2021): 201–62. http://dx.doi.org/10.1515/til-2021-0009.
Повний текст джерелаАнотація:
Abstract This Article explores settlement incentives under three different burden of proof rules. The conventional burden of proof is a discontinuous step-function, jumping from no damages to full damages at the 0.5 jury confidence level. Continuous burdens of proof, by contrast, would permit sanctions to steadily increase as juror confidence rises from 0 to 1, with no discontinuity. Linear burdens, which have received extensive attention in prior literature, escalate sanctions steadily across the whole range of confidence levels, while the logistic burden takes a nonlinear form. Using a data simulation approach guided by the empirical realities of American civil litigation, I consider the incentives that each of these rules creates for parties contemplating settlement, using a model in which parties make divergent forecasts of their expected outcomes at trial due to optimism bias. Based on this analysis, I conclude that a linear burden would likely raise our settlement rate by a modest amount, except in very large cases and in “easy” cases, in which an unbiased person would predict that a trial factfinder would have a level of confidence in liability quite close to either zero or one. I also compare the expected error rate of the settlements that each rule produces, and find that the linear rule modestly lowers the expected error rate of settlement overall, although this benefit does not hold for easy cases or those with very high damages. Lastly, I conduct a similar analysis for the logistic burden, finding that it induces a similar quality and quantity of settlements as we currently achieve using conventional burdens.
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Yao, Xian-sen, and Yao-yuan Zhang. "The Burden of Proof on Gang-related Property: Defunctionalization and Regulation." Legal Science in China and Russia, no. 6 (June 6, 2024): 108–17. http://dx.doi.org/10.17803/2587-9723.2023.6.108-117.
Повний текст джерелаАнотація:
Anti-Organized Crime Law establishes the proof system of gang-related property. However, due to the abstraction of the proof system and the disagreement of the distribution of the burden of proof, the proof system has the risk of blurring the burden of gang-related property, and forms a tendency of confiscation that is unfavorable to the accused. The defunctionalization of the burden of proof is manifested as the defunctionalization of the main body, the content and the function of the burden of proof. In view of the problem, criminal presumption rules, inversion of burden of proof, transfer of burden of proof and other distribution schemes of burden of proof cannot solve the problem.In accordance with Article 45 (3) of the Anti-organized Crime Law, the public prosecution should bear the burden of proof on gang-related property, moderately reduce the evidentiary requirements and proof standards of the prosecution’s allegations to ease the prosecution’s difficulty in proving, thus negate the vanity of the burden of proof. At the same time, the defendant bears the obligation to clarify the case of gang-related property, and participates in the identification of gang-related property, so as to realize the legitimacy identification of the nature of the gang-related property.
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Effendy, Marwan. "PEMBALIKAN BEBAN PEMBUKTIAN DAN IMPLEMENTASINYA DALAM PEMBERANTASAN TINDAK PIDANA KORUPSI DI INDONESIA." Jurnal Hukum & Pembangunan 39, no. 1 (March 3, 2009): 1. http://dx.doi.org/10.21143/jhp.vol39.no1.201.
Повний текст джерелаАнотація:
AbstrakReversal burden of proof is one of several developing legal doctrine'sregarding criminal procedure law areas, under the law No. 31 1999 yearconcerning against corruption (amended by law No. 202001 year and LawNo. 30 2002 year concerning Commison Against Corruption) hascaracterized combination betwen balanced burden of proof and absoluteburden of proof where the burden of proof not only applicable for corruptioncrime and is placed to the accused front of the court, but is ordered toattorney too beside is burdened to civil servant or state executive out ofcourt.
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Haetami, Enden. "The Strength of Electronic Evidence in the View of Islamic Law." International Journal of Science and Society 4, no. 4 (January 5, 2023): 666–75. http://dx.doi.org/10.54783/ijsoc.v4i4.615.
Повний текст джерелаАнотація:
Electronic documents are admissible as evidence under Law No. 11 of 2008 about Electronic Information and Transactions; consequently, it is vital to examine the use of electronic documents as evidence in positive Indonesian law and how electronic evidence is seen in Islamic law. Al-Qur'an and As-Sunnah have specified the requirements for criminal proof in Islamic law. This is normative juridical research pertaining to legal norms and regulations, court decisions, and living norms that arise in society. According to the findings of the study, electronic media can be utilized as evidence, but not as standalone proof. In the Islamic legal system, electronic proof is accomplished by qarinah/guidance, next creed/witness, and ultimately book/writing. Therefore, it is anticipated that this research will provide a theoretical addition to the subject of Islamic law so that the use of electronic media will no longer be a legal issue and the public would be able to continue using them as evidence.
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VAPNIARCHUK, Viacheslav V., Oksana V. KAPLINA, Ivan A. TITKO, Volodymyr I. MARYNIV, and Oksana V. LAZUKOVA. "The Burden of Criminal Procedural Proof." Journal of Advanced Research in Law and Economics 10, no. 1 (March 31, 2019): 386. http://dx.doi.org/10.14505//jarle.v10.1(39).40.
Повний текст джерелаАнотація:
The urgency of the article stated in the article is due to the need to revise traditional scientific views on certain peculiarities of criminal procedural evidence in connection with the expansion of the adversarial nature of domestic criminal proceedings. The purpose of the paper is to determine the essence of the category ‘burden of proof’ and justify the necessity of introducing it into scientific and law enforcement circulation. The main approach to the study of this problem was to carry out a critical analysis of the norms of the current criminal procedural legislation that regulates the requirements regarding the burden of proof and the views expressed on their proper understanding and application. The publication expresses the view that the distinction between such legal categories as ‘burden of proof’ and ‘burden of proof’ is proposed, the definition of the concept of ‘burden of proof’ is proposed and the rules for burden sharing between parties of criminal proceedings are analyzed. The material of the article represents both theoretical and practical value. They can be used for further research into the essence of the concept of ‘burden of proof’, as well as for proper understanding and enforcement of criminal procedural law enforcement activities.
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Jurkeviča, Tatjana, and Kaspars Šmits. "BURDEN OF PROOF: PROCEDURAL UNDERSTANDING OF STANDARD OF PROOF." Administrative and Criminal Justice 3, no. 80 (September 30, 2017): 44. http://dx.doi.org/10.17770/acj.v3i80.2788.
Повний текст джерелаАнотація:
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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Hulu, Severius, Diantota Simanjuntak, Josua O. I. Limbong, and M. J. P. Sagala. "PENERAPAN SISTEM PEMBUKTIAN TERBALIK DALAM TINDAK PIDANA PENCUCIAN UANG." Jurnal Darma Agung 27, no. 1 (April 4, 2019): 822. http://dx.doi.org/10.46930/ojsuda.v27i1.138.
Повний текст джерелаАнотація:
One of the Government's efforts in emphasizing the rampant money laundering criminal acts or money laundring is giving special attention in the aspect of proof. Proof of true or whether the accused did the Act of charged, became the most important part of the law of criminal procedure. In the perspective of the science of criminal, law is known for three (3) theories about the law of proof: the burden of proof on the prosecution, the burden of proof on the defendant, the burden of proof that was balanced. The relationship of the system of reverse proof is limited on human rights (human rights) not inverted evidentiary assas regardless of the history of the establishment of this principle in the prevention and eradication of the crime of money laundering which in fact this principle is applied also in the prevention and eradication of criminal acts of corruption
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Amaral, Guilherme Rizzo. "Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart." Journal of International Arbitration 35, Issue 1 (February 1, 2018): 1–30. http://dx.doi.org/10.54648/joia2018001.
Повний текст джерелаАнотація:
This article addresses two subjects that are relevant to the finding of facts in international arbitration, namely, the burden of proof and the power of the arbitral tribunal to draw adverse inferences. Regarding the burden of proof, it shows that despite the existence of a general rule stating that the party making the allegation carries the burden to prove it, there are other factors – such as the applicable law to the merits or to the procedure – that may play a role in defining it. In circumstances where the party carrying the burden of proof is not able to discharge it without evidence that the opposing party possesses, the tribunal has the power to order the opposing party to produce said evidence. Non-compliance with the tribunal’s order calls for the drawing of an adverse inference, which is not a reversal of the burden of proof nor a lowering of the standard of evidence, but rather the filling of the gap left by the missing (non-produced) evidence by a complex gap-filler. This article explains the elements within such gap-filler and presents an original methodology (a step-by-step approach) for the drawing of adverse inferences, represented in an Inference Chart.
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Taufik, A. Taufik. "Verstek Divorce Case in the Perspective of Positive Law and Islamic Law." Law Development Journal 1, no. 2 (September 17, 2020): 90. http://dx.doi.org/10.30659/ldj.1.2.90-98.
Повний текст джерелаАнотація:
The research problem is that, in examining the verstek of the divorce case, the judge asked the plaintiff to prove the argument of the lawsuit with written evidence and / or witnesses, even though the verstek provisions did not regulate that. What is the legal basis of evidence regarding the subject matter in verstek and why did the defendant choose not to attend the trial and how is the verzet examination of divorce cases in court. how to study literature. While the data analysis method used is descriptive normative, that is, the method used to describe the norms on which the judge accepts, examine and resolve cases that emphasize the aspect of the prevailing legislation. Based on the analysis, it can be seen that the reason the judge ordered proof is: In the case of the verstek case of divorce cases, the principle of Lex Specialis Derogat Lex Generali is applied, therefore divorce cases are an exception to the HIR provisions. Because proof can show more of a legal function in providing a sense of justice and protection to society. Proof is useful to know the truth of the plaintiff's claim whether the lawsuit has legal grounds and does not violate rights. The formulation of Article 125 paragraph (1) HIR does not contain the words 'must', but instead the word 'accepted' is used.Apart from basing it on positive legal provisions, in the version of divorce cases, the panel of judges also based on the doctrine in the Fiqh Books in the form of syar'iyah evidence. In a divorce case what is sought is material truth, not mere formal truth. It can be seen from the verdicts in divorce cases both recognized and in the verstek verdict, still undergoing a proving process. Both positive law and Islamic law see the need for proof in a verdict from a divorce case.Keywords : Verstek; Divorce Case; Positive Law; Islamic law.
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Voitovich, Lilia V., Elena A. Nakhova, and Elena V. Silina. "The subject of proof and the burden of proof in civil proceedings in the Anglo-Saxon and continental legal systems of foreign countries." Vestnik of Saint Petersburg University. Law 14, no. 4 (2023): 1062–76. http://dx.doi.org/10.21638/spbu14.2023.414.
Повний текст джерелаАнотація:
The article deals with the problems of the concept and legal nature of the subject of proof and the distribution of the burden of proof in civil proceedings in the countries of the Anglo-Saxon and continental legal systems. The authors point out the need for a fundamental revision of the Russian theory of evidence and making the necessary changes to procedural legislation, taking into account the positive experience of the legal regulation of the subject of proof in the procedural legislation of other states and the reception of certain positively tested norms of procedural legislation of foreign countries in terms of the regulation of the subject of proof and the distribution of the burden of proof in Russian procedural legislation. The authors note that the advantage of English and American law is the detailed consolidation of the mechanism of the disclosure of evidence and the sanctions for violation of its order, which amount to the inability to refer to evidence that has not been disclosed in accordance with the established procedure or disclosed with its violation. Currently, the rules for the disclosure of evidence are also fixed in the current civil procedural legislation. The sanctions for violation of the procedure for the disclosure of evidence have not been established. The paper notes that the legislative structure of the active role of the court in evidentiary activities according to the model of the French court could find consolidation in Russian civil proceedings. The authors conclude that the mechanism for determining the subject of proof is fixed in the procedural legislation of Russia, taking into account the type of substantive law applicable to disputed legal relations, detailing the general rule for the distribution of the burden of proof, fixing the mechanism of private rules for the distribution of the burden of proof.
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Pasewark, Richard A., Barbara Parnell, and Jane Rock. "Insanity defense: Shifting the burden of proof." Journal of Police and Criminal Psychology 10, no. 2 (October 1994): 1–4. http://dx.doi.org/10.1007/bf02811135.
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Mulyadi, Lilik. "ASAS PEMBALIKAN BEBAN PEMBUKTIAN TERHADAP TINDAK PIDANA KORUPSI DALAM SISTEM HUKUM PIDANA INDONESIA DIHUBUNGKAN DENGAN KONVENSI PERSERIKATAN BANGSA-BANGSA ANTI KORUPSI 2003." Jurnal Hukum dan Peradilan 4, no. 1 (March 31, 2015): 101. http://dx.doi.org/10.25216/jhp.4.1.2015.101-132.
Повний текст джерелаАнотація:
This article describes some problems of the result of research regarding the shifting of burden of proof upon corruption offences in the Indonesian system of criminal law with regards UN Convention Against Corruption (UNCAC) 2003. There are two basic questions which become the research objections, firstly: to what extent the shifting of burden of proof has been implemented in the criminal court regarding corruption cases, and secondly, to what extent does the legislation policy apply for the shifting of burden of proof in relation with UNCAC 2003. The article uses normative research which regulation, conceptual, case and comparative approach. Such research emphasizes interpretation and legal construction to obtain some legal norms, conception, regulation list and its implementation in concreto cases. Regulation and conceptual approach to used how to know, existention, consistency and harmonization regarding the shifting of burden of proof upon corruption offences in legislation body. The cases approach uses comparative law regarding the reversal burden of proof upon corruption offencer between Indonesia and the other countries. This research shows that the shifting of burden of proof has never yet applied for in the corruption cases Indonesia. Those experiences is not similar with the experiences of against corruption Hong Kong and India, wihich implement the reversal burden of proof by using some approach socalled balanced probability of principles in the relation to the property or asset of defendant comes from. The Indonesian corruption regulation policy, especialy article 12B, 37, 37A, 38B apparently it’s not cleaq and disharmony to norm of sudden charge of fortune the shifting of burden of proof formulation in connection with United Nations Convention Against Corruption 2003(KAK 2003). So, necessary (needs) of modification sudden charge of fortune shifting of burden of proof formulation which preventive, represive and restorative characteristic. Keywords: Shifting the Burden of Proof, Corruption Offences, Criminal Justice System
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Jurkeviča, Tatjana. "Burden of Proof: Standard of Proof in Court Proceedings (Latvian Experience)." De Securitate et Defensione. O Bezpieczeństwie i Obronności 8, no. 2 (March 20, 2023): 216–32. http://dx.doi.org/10.34739/dsd.2022.02.14.
Повний текст джерелаАнотація:
Topicality of a subject-matter “Burden of proof in major court proceedings” 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 procedure, administrative offence procedure and criminal procedure law and to determine standard of burdens of proof within each of these procedures. Burden of proof, or duty to prove a 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. Author, by researching burden of proof in so-called major court proceedings, provides an explanation on legal aspects of its standards.
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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 (July 24, 2020): 113–31. http://dx.doi.org/10.7590/187479820x15930701852274.
Повний текст джерелаАнотація:
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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Martha, Rutsel Silvestre J. "Presumptions and Burden of Proof in World Trade Law." Journal of International Arbitration 14, Issue 1 (March 1, 1997): 67–98. http://dx.doi.org/10.54648/joia1997004.
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Ellis, Anthony. "War Crimes, Punishment and the Burden of Proof." Res Publica 16, no. 2 (March 17, 2010): 181–96. http://dx.doi.org/10.1007/s11158-010-9110-6.
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Lisova, Anna P. "The Burden of Proving in the Criminal Procedure of the Main European States." Advocate’s practice 3 (April 29, 2021): 44–49. http://dx.doi.org/10.18572/1999-4826-2021-3-44-49.
Повний текст джерелаАнотація:
The article contains a summary of the theoretical and legal aspects of foreign criminal procedure law (using the examples of Germany, France and Italy) related to the legal phenomenon of «burden of proof». Conclusions are formulated that: the criminal procedural law of these states assesses the legal phenomenon «the burden of proof» as an integral part of the principle of the presumption of innocence; the admissibility of the transfer of the burden of proof of certain circumstances of the criminal case from the prosecution to the defense is admitted, while the grounds and scope of such transfer vary from minimal (Germany) to fairly broad (France); the grounds for shifting the burden of proof are: the provision for this action by the criminal law or other special laws that establish criminal liability for the commission of certain unlawful acts; the formulation of the objective side of the crime by the criminal law in a way that implies the guilty commission of an act (for example, carrying a firearm or cold weapon without a permit); introduction into the criminal proceedings by the defense side of evidence favorable to the defendant, including the statement that the latter committed an act while in an unusual mental state or under unusual circumstances; unlike the prosecution, the defense generally fulfills the burden of proof in accordance with the «reasonable doubt» standard of the prosecution’s arguments.
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Peters, Sara M. "Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden." Journal of Tort Law 13, no. 2 (November 18, 2020): 237–57. http://dx.doi.org/10.1515/jtl-2020-2009.
Повний текст джерелаАнотація:
AbstractWrongdoing does not only produce the harm that is the subject of a tort suit. It also necessarily produces uncertainty regarding what would have occurred without the wrongdoing. As a result, in proving causation, plaintiffs must overcome an information deficit that is not of their own making. From case to case, there is variation in the degree of uncertainty about causation, and in the extent to which that uncertainty is fairly attributable to the underlying tort. However, the degree of uncertainty tends to be high in cases where defendants failed to take reasonable precautions, since the plaintiff must construct, almost out of thin air, the counterfactual impact of the untaken precautions. Likewise, where underlying torts involve concealment or the failure to gather or seek information, the directly generate uncertainty. In such cases, where a defendant’s conduct substantially or directly generates uncertainty regarding causation, the burden of proof should be modified so that the uncertainty does not inure to the benefit of the wrongdoer. The impact of burden shifting in such scenarios would not be radical, costly, or harmful to the aims of justice. Causation, properly understood, is intended to be a minimum threshold requirement, wholly distinct from the negligence and scope-of-liability analyses. Relieving a plaintiff from the burden of proving causation would not relieve the plaintiff from proving negligence and proving that the negligence foreseeably gave rise to a risk of the harm that befell the plaintiff. The current allocation of the burden of proof on causation produces results that are intuitively and strikingly unjust. Courts should be more ready to shift the burden of proof to the wrongdoer.
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Rooney, Derek. "The Shifting Burden of Proof in Exactions." Planning & Environmental Law 66, no. 3 (February 18, 2014): 9–10. http://dx.doi.org/10.1080/15480755.2014.895548.
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Marossi, Ali Z. "Shifting the Burden of Proof in the Practice of the IranUnited States Claims Tribunal." Journal of International Arbitration 28, Issue 5 (October 1, 2011): 427–43. http://dx.doi.org/10.54648/joia2011035.
Повний текст джерелаАнотація:
When an adjudication body is called upon to resolve a dispute, its function is to weigh the adduced evidence and decide whether a claim has been made out on that evidence or not. The adjudication body will come to a conclusion from the evidence that has been presented, and in some cases from evidence which has not been presented, but which would have been expected to be forthcoming. International tribunals, such as the Iran-United States Claims Tribunal (IUSCT), may also draw adverse inferences from the silence of a party in circumstances where such silence is inconsistent with the position taken by that party in the arbitration. This article briefly discusses issues such as the burden of proof, who must shoulder the burden of proof, and an alternative allocation for burden of proof in the practice of the international adjudication bodies (mainly the Tribunal itself ).
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Azizah, Hanifah, M. Hamdan M. Hamdan, Mahmud Mulyadi, and Sunarmi Sunarmi. "Analisis Pembuktian Terbalik Pada Tindak Pidana Pencucian Uang (Studi Putusan MA NO. 1454 K/PID.SUS/2011; PUTUSAN MA NO. 537 K/PID.SUS/2014; PUTUSAN MA NO. 336 K/PID.SUS/2015)." Journal of Education, Humaniora and Social Sciences (JEHSS) 4, no. 1 (June 24, 2021): 80–87. http://dx.doi.org/10.34007/jehss.v4i1.588.
Повний текст джерелаАнотація:
TPPU (Money Laundering Criminal Act) is regulated in Law 8/2010 on Prevention and Eradication of TPPU. The research was focused on TPPU which corruption as its principle criminal act, Its Law enforcement by using reversal of the burden of proof. The research used juridical normative and descriptive analytic method. The data were gathered by conducting library research and analyzed qualitatively, and the conclusion was drawn deductively, from general to specific. The purposes of this research is to know about the regulation on reversal of the burden of proof in Law on TPPU and the implementation of reversal of the burden of proof in TPPU in the Supreme Court’s Rulings No. 1454 K/ Pid.Sus/2011, No. 527 K/ Pid.Sus/2014, and No. 336K/ Pid.Sus/2015, and how about the obstacles and their solution for reversal of the burden of proof in the case of TPPU. Reversal of the burden of proof should be applied in the level of investigation because TPPU is an extraordinary crime so that extraordinary treatment should also be applied since TPPU has great impact on the State’s economic condition. Therefore, TPPU should have shortcut in its process so that the State’s loss can optimally (effectively and efficiently) be solved.
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Sagita, Afrianto. "PEMBAHARUAN KEBIJAKAN HUKUM PIDANA TERKAIT BEBAN PEMBUKTIAN PADA TINDAK PIDANA KORUPSI DALAM RANGKA PENGEMBALIAN KERUGIAN KEUANGAN NEGARA." Jurnal Hukum Respublica 17, no. 2 (May 11, 2018): 309–30. http://dx.doi.org/10.31849/respublica.v17i2.2095.
Повний текст джерелаАнотація:
Abstract
This research aims to find out and analyze about how the criminal law policy reform related to the burden of proof theory can be used as the legal instruments in order as a tool to recover the state financial losses. This research has the type of Normative legal research, which has done by examining the library materials or the secondary data. The result for this reserach explain which Presumption Of Guilty is very urgent to be contained on the Eradication Of Corruption Crime Law Policy and it is considered to implement as immediatly. The application of the Presumption Of Guilty theory should be limited only on the evidance step on the trial only. Through the method of reversing the burden of proof, which expected to eliminate the difficulties of Eradication on the Corruption Crime Law Policy which faced during this time. Therefore, it is reasonable if the legislators still desire to contained the reversing of the burden of proof system on the Corruption Crime Law Policy, so it should be able to find out the base of law, which is by making the presumption of guilty to become the foundation or the philosophy which has function as the base of law. Then, level of the principle to be implemented as a norm, so that the policy about the burden of proof can be included on every article clause in the Corruption Crime Law Policy. Legal rules which is in the context of eradicating corruption also should be developed progressively according to the development of times, to reduce the left behind and get lose of current corruption modes nowadays.
Keywords: Criminal Law Policy, Burden of Proof, Corruption
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Wiriadinata, Wahyu. "Korupsi dan Pembalikan Beban Pembuktian." Jurnal Konstitusi 9, no. 2 (May 20, 2016): 313. http://dx.doi.org/10.31078/jk924.
Повний текст джерелаАнотація:
This paper was intended to answer a question on the extent of the effectiveness of a reversal burden of proof as stipulated in positive (prevailing) Indonesia law, that is, as provided for in Law Number 31 of 1999 on Eradication of Corruption Crime. Then, a problem that rose next was: could the application of reversal burden of proof in proving a corruption crime case prevent or reduce or even eliminate totally corruption crimes in Indonesia? This research built on a theoretical frame of thought from Roscoe Pound, who maintains that law is a tool of social engineering. This concept was cited by Muchtar Kusumaatmadja, who adapted it to Indonesia conditions and transformed it to be law as a social engineering medium. Law should be made as a medium of reforming and resolving all problems that emerge in community, including corruption crimes. One of the things to reform is the law of proof system, that is, from a conventional proof system to a reversal system. This paper was written by a juridical-normative method, that is, by studying legislations, both contained in laws and in literature/books on legal science, particularly legislations relating to reversal burden of proof. Then, the results, in a form of juridical aspect, were written in a descriptive-analytical form. The conclusion of this research was an answer to the problems put forward above, that is: Corruption crimes have been occurring continuously till now in Indonesia. Thus, Law Number 31 of 1999, Article 37, has not been effective yet in eradicating corruption crimes. Therefore, it needs to apply a pure reversal burden of proof by avoiding the incidence of bureaucratic chaos.
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Ahmad, Zeina, and Bashar H. Malkawi. "The burden and order of proof in WTO claims: evolving issues." International Journal of Law and Management 59, no. 6 (November 13, 2017): 1220–35. http://dx.doi.org/10.1108/ijlma-10-2016-0090.
Повний текст джерелаАнотація:
Purpose The World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof under WTO dispute settlement mechanism. Design/methodology/approach The paper examines the rule of “prima facie” in WTO jurisprudence. To do so, the first part will focus on the development of dispute settlement within WTO. The second part is divided into several subsections that will focus on the burden of proof concept, burden of proof in common law, burden of proof in civil law and the prima facie standard. Findings The DSU does not explicitly regulate how to allocate the burden of proof, but panels and the AB needed to address that issue early in their history. Despite this, all aggrieved parties to establish a prima facie case before the case can become the subject of a panel hearing. There is a need to adopt a burden of proof standard that assesses evidence on the basis of preponderance of the available evidence rather than on the basis of a party’s failure to adduce evidence to back up or dispute a claim. Originality/value The paper is an attempt to address an important issue on the presentation of evidence and proof in international litigation, i.e. WTO.
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Andrych-Brzezińska, Izabela. "Ciężar dowodu – zagadnienie z pogranicza prawa cywilnego materialnego i procesowego." Studia Iuridica 70 (November 8, 2017): 29–37. http://dx.doi.org/10.5604/01.3001.0010.5639.
Повний текст джерелаАнотація:
The burden of proof has two interrelated aspects: material and formal aspect. Material aspect of the burden of proof allows to decide every civil trial – even that where the evaluation of the evidence left some doubts in the judge’s mind. The formal aspect of the burden of proof indicates the direction of the trial, especially when it comes to taking evidence. It is the party, not the judge, who bears the burden of producing evidence. It is also the party who has to persuade the trier of the fact of the truth of the alleged facts. But it is the institution of the burden of proof that allows the judge to decide every case. For that reason regulations governing the burden of proof are present in all proceedings. What is not commonly agreed is the answer to the question: does the issue of burden of proof belong to substantive law or is it a matter of litigation. The presented article tries to closer the arguments of both sides.
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Mursanto, Deddy, La Ode Muhammad Karim, and Mashendra Mashendra. "Effectiveness to the reversal of the burden proof system in handling corruption case." Jurnal Hukum Volkgeist 5, no. 1 (December 9, 2020): 14–20. http://dx.doi.org/10.35326/volkgeist.v5i1.863.
Повний текст джерелаАнотація:
Corruption is an act that can harm State finances and cause losses to the people's economy. This study aims to determine the arrangement of the burden of proof reversals system of corruption according to the applicable provisions and the proper regulation in implementing the system of reversing the burden of proof to be done optimally. This study uses a normative juridical research methodology with a statute approach. This research's data analysis method is descriptive qualitative by describing the problems and facts in writing from the literature. The study indicates that the burden of proof reversal system concerning the Eradication of Corruption Crimes contained in Law no. 20 of 2001 is limited only to the offense of gratification regulated in Article 12 B paragraph (1) letter a. The withdrawal presumption proof can also be extended to the defendant's property, which is claimed to be connected to the accused's case (Article 37 A) and the property of the defendant (who has not been charged) which is not accused of corruption as a result of a criminal act (Article 38 B). Reversal of the burden of proof in the law of corruption is a reversal of the burden of proof impartial public prosecutor and the defendant alike must prove but / the same element proved different.
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Syam, Misnar. "PENERAPAN ASAS PEMBALIKAN BEBAN PEMBUKTIAN DALAM PENYELESAIAN SENGKETA KONSUMEN." ADHAPER: Jurnal Hukum Acara Perdata 4, no. 1 (October 10, 2018): 91. http://dx.doi.org/10.36913/jhaper.v4i1.66.
Повний текст джерелаАнотація:
Consumer dispute related to violation of the consumer rights by businessman. Article 45 of Consumer Protection Law provides that the dispute may be settled by out of court dispute settlement or through litigation. In Indonesia, out of court dispute settlement of consumer disputes is conducted under the authority of Consumer Disputes Settlement Body (BPSK), while in litigation mechanism exercised with submission by the consumer personally, class action, or NGO claim. Consumer dispute settlement is part of civil litigation. According to Article 163 HIR/ 283 RBg, the party who alleges that he has a right shall proof his allegation. While, according to Article 19(5) of Consumer Protection Law, the businessman may be exempted from its duty, if it can proof that the damages suffered by the consumer is because of the consumer fault itself. Therefore, the businessman must prove that it did not commit any fault (shifting the burden of proof). The principle of shifting the burden of proof has adopted by Consumer Protection Law because the consumer has no suffi cient knowledge of materials, production process, and distribution process which done by the businessman regularly. The Consumer Protection Law has no clear provision on the implementation of shifting the burden of proof, while the same situation is also found in Supreme Court Regulation No. 1 of 2006 concerning Appeal on the Judgment of BPSK. Thus, there are inconsistency implementations on the shifting of the burden of proof between on case by case. It depends on the comprehension knowledge of the judges. Such situation may lead to ineffective implementation of Consumer Protection Law.
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Gadelshina, Elvira R. "Burden of Proof Under the Denial-of-Benefits Clause of the Energy Charter Treaty: Actori Incumbit Onus Probandi?" Journal of International Arbitration 29, Issue 3 (June 1, 2012): 269–84. http://dx.doi.org/10.54648/joia2012017.
Повний текст джерелаАнотація:
No less than thirty investor-state disputes have been brought to arbitration under the auspices of the Energy Charter Treaty (ECT) since its entry into force back in 1998. Over the years, ECT tribunals have confronted the host states' attempts to invoke the 'denial-of-benefits' clause of the Treaty on multiple occasions. Yet the issue of the burden of proof under Article 17(1) remains largely unsettled. In general, only two solutions to the burden of proof dilemma are conceivable: it is either the respondent state that is under an obligation to persuade a tribunal that the criteria for an exercise of the 'right to deny' are met in a given dispute, or it is the claimant who has a duty to prove the opposite. ECT case law is split along the same lines. In some cases, the tribunals seemed to have endorsed the host states' 'free rider' attitude by tolerating the invocation of the denial clause, without requiring the respondents to establish the assertions proposed. In other arbitrations, the tribunals adhered to the classic canons of the legal burden. This article seeks to explore the two approaches to the burden of proof under Article 17(1) ECT from the perspectives of international law and jurisprudence on the legal burden, taking account of the wording and spirit of the ECT.
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Berthou, Katell. "New Hopes for French Anti-Discrimination Law." International Journal of Comparative Labour Law and Industrial Relations 19, Issue 1 (March 1, 2003): 107–37. http://dx.doi.org/10.54648/ijcl2003006.
Повний текст джерелаАнотація:
Abstract: This article provides an analysis of the recent legal developments in France in the field of equal treatment and equal opportunity in the workplace. It begins with a survey of the situation prior to 2001, paying special attention to the failures of French law, in particular where the burden of proof and indirect discrimination are concerned. It then proceeds to examine the two statutes enacted in 2001. In an attempt to implement EC Directives 2000/43/EC and 2000/78/EC these statutes provide additional incentives for collective bargaining on sex equality, an extension of the scope of protection against discrimination, a new regime as regards the burden of proof and measures to ensure more effective judicial protection.
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Stijleman, Annelien. "Proof of the Facts in Belgian Administrative Law: An Analysis of the Case Law of the Belgian Council of State." Review of European Administrative Law 17, no. 1 (May 27, 2024): 21–49. http://dx.doi.org/10.7590/187479824x17117014447490.
Повний текст джерелаАнотація:
This text discusses proof of the facts in Belgian Administrative Law. In Belgium a general comprehensive theory on proof of the facts in administrative law is currently missing. There is no general Belgian legislative framework on evidence or proof of the facts as such. Monographs or academic studies that discuss proof in administrative law as such are lacking too. Therefore, the analysis in this article is based on the case law of the general and highest administrative court, the Belgian Council of State. This text discusses questions concerning the division of the burden of proof, the object of proof, the degree of certainty on the facts required, the means of evidence and the determination of their value.
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Azizah, Hanifah, Topo Santoso, Yunus Husein, and Mahmud Mulyadi. "Reversal of Burden Proof as a Reform of Criminal Law Eradicate Money Laundering." Ultimate Journal of Legal Studies 1, no. 2 (December 11, 2023): 100–109. http://dx.doi.org/10.32734/uljls.v1i2.13758.
Повний текст джерелаАнотація:
One of the efforts of the Indonesian government in reducing money laundering is to pay special attention in terms of proof, namely with the reverse proof system. Over time, the reversed proof system in the Corruption Law is still regulated even though the Corruption Law has undergone many changes. Although it has been included in positive law, in practice this proof is not applied thoroughly and there are still obstacles in its application. This research seeks to answer in what cases the reverse burden of proof is applied and what are the obstacles in its application. This type of research is normative juridical. The results of the study resulted in the merging of corruption cases with money laundering can be considered to provide its own advantages in handling corruption cases. More actors are ensnared including corporations. Maximum punishment, streamlining the return of state assets can impoverish corruptors. Legal culture that has not adapted to the new system, reverse evidence is not clearly regulated in the law.
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Haspada, Deny, and Efa Laela Fakhriah. "The Development of Evidence Law in Civil Cases Towards the Unification of Civil Procedural Law." Yuridika 35, no. 1 (October 21, 2019): 31. http://dx.doi.org/10.20473/ydk.v35i1.15619.
Повний текст джерелаАнотація:
The proof is the most important stage in settlement of a case in court because it aims to prove that a particular legal event or relationship has been made as a basis for a lawsuit. Through the burden of the proof stage, the judge will get the bases to decide between settling a case. Nevertheless, the burden of proof regulation remains plural. There are even some regulations which regulate not only the material law but also the formal law. Such a situation affects the achievement of order and legal certainty in law enforcement efforts. As is known, the nature of the procedural law is formal law, namely the law concerning the rules of the game in settlement of disputes through the court, and is binding on all parties and cannot be deviated. That is why procedural law has a public nature. For the certainty of law, therefore, the procedural law must be in the codification form of unification nature so that it can generally apply to and binding on all parties. Therefore, it is necessary to reform the civil procedural law that is codified and nationally applicable.
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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 (May 1, 2017): 299–329. http://dx.doi.org/10.1177/1365712717701144.
Повний текст джерелаАнотація:
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.