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1
Ho-Dac, Marion. "Recognition of a status acquired abroad." CUADERNOS DE DERECHO TRANSNACIONAL 14, no. 1 (March 8, 2022): 1169–93. http://dx.doi.org/10.20318/cdt.2022.6745.
Повний текст джерелаАнотація:
In the French legal system, recognition of status is a classic issue that attracts diverse responses, depending on the circumstances, from procedural recognition of judgement to conflict of laws and conflict of authorities. In the light of this classic scheme, many foreign statuses are recognised in France without any difficulties, provided that they were legally obtained abroad. However, many obstacles to recognition remains and the current changing legal context in favour of a new subjective right of free movement including the status of persons, has been provoking active academic discussions among French scholars and unprecedented judicial developments. For these reasons, it is important to rethink globally the issue of recognition of status in a broad perspective within the French legal order.
2
Kadelbach, Stefan. "Nuclear Testing and Human Rights." Netherlands Quarterly of Human Rights 14, no. 4 (December 1996): 389–400. http://dx.doi.org/10.1177/092405199601400402.
Повний текст джерелаАнотація:
On 4 December 1995, the European Commission of Human Rights dismissed a complaint filed by inhabitants of French Polynesia against the decision of the President of the French Republic to resume underground nuclear testing in the South Pacific. The case raises a series of issues regarding both substantive human rights law and procedural law which are of general interest for human rights litigation in cases of degradation of the environment. The decision misses the opportunity to elaborate on how to protect human fights against potentially harmful activities when the risk incurred is in dispute. Thus, it raises more questions than it answers.
3
Darwazeh, Nadia, and Baptiste Rigaudeau. "Clues to Construing the New French Arbitration Law An ICC Perspective on Procedural Efficiency, Good Faith, and Independence." Journal of International Arbitration 28, Issue 4 (August 1, 2011): 381–99. http://dx.doi.org/10.54648/joia2011031.
Повний текст джерелаАнотація:
The new French arbitration law has been celebrated as a modern, if not post-modern, law. Two provisions of the law have particularly attracted the authors' curiosity. Article 1464 requires both arbitrators and parties to conduct the arbitration proceedings "efficiently" and in "good faith." But what does this dual obligation actually entail and how will it affect parties, counsel and arbitrators? Article 1456 codifies the obligation, previously established by French case law, that an arbitrator must disclose any facts affecting his or her independence or impartiality. In light of the current debate on arbitrator independence and disclosure in France (and beyond), triggered in part by the Tecnimont decision, what is the scope of disclosure pursuant to Article 1456? An ICC perspective provides answers to these questions. Indeed, the ICC is regularly confronted with exactly these issues: allegations of delay, misconduct and lack of full disclosure impacting an arbitrator's independence. This article discusses pertinent ICC cases, which offer a possible interpretation of these two provisions.
4
Stawarska-Rippel, Anna. "Comparative Law and Procedural Law in Poland in 1918–1933 with a Particular Emphasis on the Silesian Voivodeship." Studia Iuridica Lublinensia 32, no. 5 (December 31, 2023): 407–25. http://dx.doi.org/10.17951/sil.2023.32.5.407-425.
Повний текст джерелаАнотація:
In 2023, 500 years have passed since the entry into force of the ordinary court procedure in Poland (formula processus iudiciarii, 1523), as well as 90 years since the unification of court procedures in Poland in general and 90 years since the entry into force of the first Polish Code of Civil Procedure (1933). Therefore, this is a special opportunity to refer, in this context, to the first transformation of procedural law in Poland in the 20th century, which took place after World War I, especially in the context of comparative procedural law issues. Applicability of foreign laws in the Polish territories after World War I: Russian, German, Austrian, and Hungarian (in a small area of Spisz and Orawa), as well as Polish-French legislation, gave rise to a complicated and territorial legal mosaic. The codification works undertaken at that time in Poland, unprecedented in Europe or even in the entire world, fell within a period of great development of comparative jurisprudence. They were profound comparative studies, which are proven by the published drafts, together with explanatory memorandums, offering an original synthesis of the legal thought. The considerations made in this article relate to procedural law, which was significantly diversified in the territory of Poland reborn in 1918, especially as regards the model of legal remedies, which gave rise to considerable difficulties in the practice of the system of justice prior to the unification of court procedures. Special attention was paid to the legal situation in the Silesian Voivodeship, being a peculiar microcosm of the legal situation in the entire country.
5
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.
6
Đurđevć, Zlata, Marin Bonačić, and Marija Pleić. "RULE OF LAW CONCERNS IN THE CROATIAN PENAL ORDER PROCEDURE LINKED TO DEPRIVATION OF LIBERTY, JUDICIAL CONTROL, ADMISSIBILITY OF EVIDENCE AND PROCEDURAL RIGHTS." Pravni vjesnik 37, no. 1 (April 2021): 57–82. http://dx.doi.org/10.25234/pv/13884.
Повний текст джерелаАнотація:
The paper analyses the mechanism of a penal order as a consensual procedure aimed at relieving the criminal justice system in cases of minor criminal offences by avoiding a trial. The study aims to analyse the Croatian normative framework and case law in order to determine the distinctive traits of the penal order procedure in a comparative legal context, disclose the procedural reality and detect its shortcomings. The paper focuses on the substantive and procedural requirements for the issuing of a penal order, the judicial control of the indictment requesting a penal order, the defence rights in the proceedings before the issuing of a penal order and the position of the victim. These key elements were researched through normative, theoretical and comparative analysis of German, Austrian, Italian and French law and conclusions were tested in the case law of the Municipal Criminal Court in Zagreb and the Municipal Court in Split. The results of the research reveal that the expansion of the application of the penal order to graver offences punishable by five years of imprisonment and to more severe penalties such as deprivation of liberty, as well as deviations from some fundamental criminal procedural principles inherent in the penal order procedure, raise the question of providing adequate procedural guarantees for the defendant and the victim.
7
TOLENTINO, C. C., and Paulo Eduardo A. SILVA. "Processo judicial e poder político: práticas inquisitoriais no julgamento de condenação de Joana D’Arc." Passagens: Revista Internacional de História Política e Cultura Jurídica 13, no. 2 (May 31, 2021): 191–221. http://dx.doi.org/10.15175/1984-2503-202113202.
Повний текст джерелаАнотація:
Records on the trial and sentencing for heresy of French warrior Joan of Arc dating to 1431 have been studied by a variety of fields. The present work explores the primary sources and several of these studies in the aim of analyzing the political significance of the forms adopted during the trial. From a perspective poised between the history of law and procedural law, the article clarifies aspects of the practical functioning of the Roman Canon inquisitorial procedure at the end of the Middle Ages, and, more widely, the phenomenon of the capillarization of the political power by means of the production of truth. The article concludes that, although Joan of Arc’s trial was clearly politically motivated, several of its dimensions correspond to the procedural practices of the time, leading us to an understanding that the influence of power over trials does not necessarily manifest in a direct violation of procedural rules, but rather in their very design and the ways in which they are put into operation.
8
Mehdi, Rostane. "French supreme courts and European Union law: Between historical compromise and accepted loyalty." Common Market Law Review 48, Issue 2 (April 1, 2011): 439–73. http://dx.doi.org/10.54648/cola2011019.
Повний текст джерелаАнотація:
Over the past few months, the relations between French supreme courts and EU law seem to have entered an era of reassuring transparency and clarity. This contribution will mainly focus on two rulings rendered by the French supreme courts ("Conseil d'Etat" and "Cour de cassation"), each dealing with an aspect of the relations between national and EU law. The Perreux ruling rendered by the Conseil d'Etat put an end to one of the oldest disputes between itself and the European Court of Justice: the obstinate refusal, since 1978, to recognize the direct effect of directives. By its Melki ruling, the Cour de Cassation made a reference for a preliminary ruling to the ECJ regarding, inter alia, the compatibility of the new French "priority preliminary ruling on the issue of constitutionality" (PPRC) mechanism with EU law. The article tries to show how, in the light of a real rule of reason, the national courts and the ECJ managed to specify the terms of a relationship structured around an unyielding necessity: the protection of fundamental rights. This virtuous dialogue is itself structured by procedural systems which contribute to strengthen decisively the coherence of the European legal order.
9
Voinarivskyi, M. "Administrative and economic sanctions under French commercial law." Analytical and Comparative Jurisprudence, no. 6 (December 27, 2023): 318–23. http://dx.doi.org/10.24144/2788-6018.2023.06.53.
Повний текст джерелаАнотація:
The publication examines the provisions on administrative and economic sanctions of the French Commercial Code and other acts of French legislation. It was concluded that the French experience of regulation of commercial relations is based on complex solutions involving a combination of private-law and public-law regulation.
It is substantiated that during the last century the commercial legislation of France was saturated with public legal provisions. The new French Commercial Code of 2000 incorporated a significant number of provisions that are public law, including administrative and criminal sanctions.
The presence of provisions in the French Commercial legislation, which by nature of administrative influence on business entities can be recognized as administrative and economic sanctions, is established in many spheres of relations. These sanctions include typical penalties imposed on economic entities for antitrust violations, violations of reporting and other rules of conducting commercial activities, as well as other numerous sanctions of an organizational nature. It is substantiated that the disciplinary responsibility of certain professions in commerce defined in the FCC can be qualified as a type of administrative and economic sanctions relevant to the Ukrainian legal sense.
Taking into account the experience of French commercial law, it was concluded that the ideas of reducing the discretion of state bodies when applying sanctions to business to eliminate the risks of corruption and abuse are not confirmed in modern European legislation. It is obvious that this follows from the quite reasonable assumption that the fight against corruption should affect the specific offender, and not destroy the effectiveness of the state's response to offenses, including in the business sphere.
Several trends in the legislative regulation of administrative and economic sanctions in France have been identified, including attempts to solve the problems of the ratio of administrative sanctions and criminal penalties on legal entities, the expansion of judges' approaches to the assessment of administrative sanctions imposed on merchants from the point of view of compliance with procedural provisions and respect for human rights.
It was concluded that the introduction of criminal liability of legal entities into national law cannot take place without an analysis of the problems caused by relevant institutions in foreign countries, in particular in France.
10
Tepe, Berna. "Intermediate Appellate Review of Commercial Law Decisions in Turkey." EMAJ: Emerging Markets Journal 4, no. 1 (August 6, 2014): 59–71. http://dx.doi.org/10.5195/emaj.2014.51.
Повний текст джерелаАнотація:
The judiciary in Turkey is still preparing for the expected intermediate appellate review (istinaf) mechanism in Turkey although the official date for its functioning is yet to be specified. Under Turkish law, a first instance court decision can be appealed not because an assertion or a claim is rejected, but due to a substantive or procedural norm of law which should have been applied during the proceedings in an accurate manner. The scope of such review also covers the suitability of the first instance court’s decision. There are nonfunctional aspects to the judicial review as specified in the 2011 Code of Civil Procedure of which a major column of novelties consist of the suspended mechanism of dual appellate review. However, the 2011 Code of Civil Procedure regulates the intermediate appellate review as a series of procedural acts and steps. The reasons to appeal a first instance court’s decision can rather be deduced from the provisions of 2011 Code of Civil Procedure. In order to structure the reasons and stages of the intermediate appellate review in Turkey, a distinction is made in the present article between (i) review over the appeal’s conditions of admissibility, (ii) review of the decision’s legality, (iii) review of the decision’s legitimacy. Rationally, the reasons for intermediate appellate review should be construed as to accomodate at least the grounds for higher appellate review as well as the extraordinary judiciary review. As different areas of private law are based on different principles, it is noteworthy that cases referred to herein pertain to commercial law. Finally, due to the parallelism between the Turkish and the French legal systems, references to decisions given by the French jurisdiction on commercial matters are made throughout the present article.
11
Kim, Hyoung Seok. "The Effects of Liberative Prescription in French Law." Korean Association of Civil Law 106 (March 31, 2024): 81–103. http://dx.doi.org/10.52554/kjcl.2024.106.81.
Повний текст джерелаАнотація:
In this article, the author examines the effects of liberative prescription in French civil law and its implications for the interpretation of the Korean Civil Code. The conclusions can be summarized as follows:
1. The question of whether a right is extinguished by the expiration of a prescription period, whether the expiration must be pleaded as a defense, and who may plead it, is a long-standing issue that has been debated since Roman law.
2. The provisions of the French Civil Code regarding the effects of liberative prescription generally align with the absolute theory in Korean law. The expiration of a prescription period results in the extinguishment of the right or its action, allowing the benefit of prescription to be claimed by other interested parties in addition to the debtor. However, the court cannot consider it ex officio, and restitution is not allowed if the extinguished obligation has been paid. In contrast to our absolute theory, French law differs in that the debtor's other creditors can claim the benefit of prescription only to the extent that the debtor is insolvent.
3. The following observations can be drawn from French civil law for the interpretation of the Korean Civil Code. First, the necessity of claiming the benefit of prescription is closely related to the possibility of its waiver, and under the absolute theory, therefore, the defense of prescription is treated as a procedural matter concerning the extinguished rights. Second, in view of Article 404 (2), a debtor should be able to contest a defense of prescription against the oblique action of their creditor's creditor if the latter's claim is already time-barred. Third, claiming the benefit of prescription by other creditors of the debtor in question, including mortgagees in inferior rankings, is permissible, but only to the extent that the debtor is insolvent, aligning with the policy of the oblique action.
12
Pechnikov, Gennady, Alexander Blinkov, and Elena Parshina. "K. Marx on his own form and content in legal relations." Legal Science and Practice: Journal of Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia 2022, no. 4 (December 27, 2022): 66–70. http://dx.doi.org/10.36511/2078-5356-2022-4-66-70.
Повний текст джерелаАнотація:
The article shows the importance of legal relations, based on the work of K. Marx “Debate on the order to steal a forest”, in which he clearly raised the question of the independence of legal relations, whether it be criminal law, or criminal procedure, or any other relationship... Any legal relationship has only its own form and content, inextricably dialectically interconnected. This is the true scientific nature of legal relations. Therefore, one legal relationship cannot be made the content of other relationships. For example, it is impossible to squeeze the Chinese procedural procedure into the French procedure without distorting its true essence, while Marx sharply criticizes the position of the Landtag deputies who tried to make the selfish private interest of forest owners the property of state criminal law and criminal procedural relations. According to Marx: “a form is devoid of any value if it is not a form of content”. Hence, the criminal process cannot be considered as a form of criminal law, since then the content of the criminal procedural legal relationship changes, since inevitably then the accused will be identified with the guilty (criminal), and the measures of procedural coercion will be identified with the measures of criminal punishment, and the presumption of innocence will be replaced on the presumption of guilt. In the same way, it is impossible to make operational-search relations the content of criminal-procedural relations and thereby erase the differences between criminal-procedural evidence and operational-search data. At the same time, the very institution of interaction between the investigator and the body of inquiry, carrying out operational-search activities, is important.
13
DUONG, KEVIN. "The People as a Natural Disaster: Redemptive Violence in Jacobin Political Thought." American Political Science Review 111, no. 4 (July 27, 2017): 786–800. http://dx.doi.org/10.1017/s0003055417000260.
Повний текст джерелаАнотація:
The trial and execution of Louis XVI served as a founding act of French republican democracy. It was also a scene of irregular justice: no legal warrants or procedural precedents existed for bringing a king to justice before the law. This essay describes how Jacobins crafted a new language of popular agency to overcome that obstacle—the language of redemptive violence. Although redemptive violence had roots in prerevolutionary notions of penal justice and social cohesion, its philosophical ambitions were revolutionary and modern. Analyzing that language illuminates how republican democracy weaponized a distinctive ideology of extralegal violence at its origins. It also helps explain redemptive violence's enduring appeal during and after the French Revolution.
14
Hamilton, Claire, and Giulia Berlusconi. "Contagion, counterterrorism and criminology: The Case of France." Criminology & Criminal Justice 18, no. 5 (January 3, 2018): 568–84. http://dx.doi.org/10.1177/1748895817751829.
Повний текст джерелаАнотація:
In the burgeoning criminological literature on security, risk and preventive justice which has followed the 9/11 attacks on the Twin Towers, ‘contagion’ or the deleterious effect of counterterrorist policies on the ordinary criminal law has been the subject of some discussion, mostly in the context of the threat which such ‘exceptional’ policies pose to mainstream procedural values. This article seeks to build on this literature through an examination of the impact of post 9/11 counterterrorism law and policy on the ordinary criminal justice system in France. Given the extent to which counterterrorist law now encroaches on various aspects of French criminal law, the argument is made for greater criminological attention to be paid to the ‘trickle-down’ effect of extraordinary law on the ordinary business of the criminal justice system.
15
PLOTNIC, Olesea, and Dorin DULGHERU. "Recunoașterea puterii din oficiu a judecătorului în litigii de consum." Analele Universitării din București Drept 2020, no. 2020 (January 13, 2020): 76–90. http://dx.doi.org/10.31178/aubd.2020.06.
Повний текст джерелаАнотація:
"In consumer dispute, litigation most of the time brings together a professional and a consumer who very often does not appear or appear alone in front of the judge, but does not really defend himself. The temptation of some judges here is to come to the aid of the party who does not appear or who does not defend himself well and therefore to apply the consumer protection rules ex officio. On this point, French and European case law has long been contradictory. In order to harmonize national law with European law, the French legislator confers to the judge the power to apply ex officio the provisions of the Consumer Code by means of the ex officio statement. The effectiveness of European consumer law, both protecting consumers and regulating the market, justifies the creation of an autonomous procedural law rather than an instrumentalisation of the ex officio recording of legal remedies. In these circumstances it is important to see the evolution of the recognition of the power of the judge ex officio, on the one hand, from the denial of said power to the faculty to do so (§ 1st) and, on the other hand, the power to waive ex officio the obligation to do so (§ 2nd)."
16
Tkachenko, О. H., and М. V. Kravchuk. "RETROSPECTIVE ANALYSIS OF DISTINGUISHING VIOLATIONS FROM CRIMES AND OFFENSES ACCORDING TO THE CRIMINAL LEGISLATION OF FRANCE." Scientific journal Criminal and Executive System: Yesterday. Today. Tomorrow 2023, no. 1 (September 15, 2023): 136–47. http://dx.doi.org/10.32755/sjcriminal.2023.01.136.
Повний текст джерелаАнотація:
The article provides the analysis of one of the first criminal laws that almost for two centuries had an essential impact on European criminal law. It was the first law that differentiated between crimes, offences, and violations. Such differentiation has survived till these days. Besides, the Article draws an analogy between the types of contraventions under the Criminal Code of France 1810 and the administrative offenses provided for by the Code of Ukraine on the Administrative Offenses. The Article provides an insight into the modern development of French Administrative and Torts Law and into the determination of the police courts authorities. It was found that although the “French” sub-system of law provides for the differentiation between the Administrative and Torts Law and criminal law, such differentiation is just theoretical. On the one hand, the punishment exists in the form of a fine and the types of contraventions are not regulated by the criminal code which makes its criminal character quite doubtful. On the other hand, however, the procedure of the administration of punishment through the imposition of sentence, deprivation of social rights, and seizure of property, as well as the complete regulation of the mentioned issues by the criminal, criminal and procedural laws testify to inseparability of the administrative offenses from the sphere of the criminal law. The article considers the possibility of the regulation of the Administrative and Torts Law of Ukraine so that the types of non-criminal offenses in analogy with the French law are regulated by the industry-specific law without the creation of the codified act in contrast to the outdated Code of Ukraine on the Administrative Offenses. Key words: Criminal Code of France, administrative offenses, police court, Code of Ukraine on the Administrative Offenses.
17
Desplanques, Freddy, and Amélie de Franssu. "Overview of the French Customs Infringements and Sanctions and the Question of Possible Harmonization." Global Trade and Customs Journal 13, Issue 7/8 (July 1, 2018): 304–9. http://dx.doi.org/10.54648/gtcj2018036.
Повний текст джерелаАнотація:
The European Commission’s proposed Directive of 13 December 2013 (Proposal for a directive of the EU Parliament and of the Council on the Union legal framework for customs infringements and sanctions, dated 13 December 2013) sets a framework to harmonize customs infringements and related sanctions. This has reopened the debate over harmonization of sanctions relating to infringements of the Union’s customs rules and sheds light upon the diversity of the law enforcement systems of each of the EU Member States’ customs services. In France, for instance, the system in place is based on specific criminal law rules. It is necessary to better understand the national legal environment and its peculiarities in order to grasp the stakes and the obstacles that delay a rapid implementation of a harmonized regime. With this in mind, we shall cover the principles that govern the French criminal law relating to customs, together with a practical overview of procedural rules in customs matters. This study will aid comprehension of the ongoing harmonization work as well as measuring how far we are from achieving it.
18
KOVALYOVA, A. V. "CONCILIATION PROCEDURES USING SPECIAL KNOWLEDGE: CAN WE APPLY IN RUSSIA THE EXPERIENCE OF THE AMERICAN, FRENCH OR ITALIAN MODEL?" Herald of Civil Procedure 11, no. 6 (February 14, 2022): 214–38. http://dx.doi.org/10.24031/2226-0781-2021-11-6-214-238.
Повний текст джерелаАнотація:
Judicial systems of various jurisdictions, faced with the problem of overloaded courts, including through disputes based on circumstances, the establishment of which or the search for a causal relationship between which requires the use of knowledge (special) unknown to judges, they are more or less successfully solve it through the development of conciliation procedures with the participation of knowledgeable persons. The current Russian procedural legislation does not provide for such conciliation procedures. In this respect, the experience developed in France, Italy and the USA is of interest. The reform of conciliation procedures initiated by the Plenum of the Supreme Court of the Russian Federation served as normative consolidation by the Federal Law of 26 July 2019 No. 197-FZ “On Amendments to Certain Legislative Acts of the Russian Federation” in the reborn form of the procedure of judicial conciliation known to the domestic civil procedural legislation of the Russian Empire, the regulations for which were approved by the Plenum of the Supreme Court of the Russian Federation on 31 October 2019. Is there a need to introduce conciliation procedures using special knowledge into Russian civil procedural legislation? Is it possible to use the American, Italian or French model? This article attempts to answer these two questions.
19
Prujiner, Alain. "Origines historiques de l'injonction en droit québécois." Histoire du droit et des institutions 20, no. 1-2 (April 12, 2005): 249–75. http://dx.doi.org/10.7202/042316ar.
Повний текст джерелаАнотація:
This survey of the historical origins of injunction in Quebec law aims at elucidating the source of some of the difficulties that have arisen lately in this much-debated field. In fact, the presence of injunction in Quebec procedural law results from specific circumstances. The need for such a procedure came from the continuation of the old French law of civil procedure after the conquest of Canada by Britain. At that time, adequate proceedings for cases of urgency had not yet been devised and did not appear in the Ordonnance of 1667, which remained in force in Quebec up to 1867. From 1763, English influence became predominant, through legislation aimed at altering this corpus of French law to adapt it to the new judicature inspired by the English system. Nevertheless, in the absence of equity jurisdiction, no serious attempt to introduce injunction was made prior to the codification. Even the first Code of Civil Procedure of 1867 did not provide for injunctions, though their need became obvious. In spite of urgings by commentators, and the existence of provisions in the Louisiana Code, the Legislature declined to adopt injunction. Courts then assumed authority to grant injunctions, either under their inherent powers or from a broad interpretation of mandamus. However, in Carter v. Breakey, Meredith C.J., for the Superior Court, after very detailed consideration of the issue, firmly opposed such endeavours as dangerous and unlawful, while urging the Legislature to make provision for the issuing of injunctions in appropriate cases. An Act was finally passed to this end in 1878. This early provision cautiously restricted the use of injunctions to six types of cases. Subsequent developments, however, especially in the new codes of 1894 and 1966, considerably broadened its scope. Adapting an equitable remedy to the general scheme of Quebec procedural law was a difficult process, producing much uncertainty in the case-law. Further, in the absence of other guidance, courts tended to look to English and American sources, thus introducing into Quebec law some principles of equity. The case of injunction in Quebec law therefore seems to illustrate the perils of receiving foreign legal institutions without adequate preparation.
20
Korol, О. "THE COOPERATION OF A JUDGE AND THE PARTIES IN THE CIVIL PROCEDURE IN EUROPEAN STATES: GENERAL APPROACHES." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 109 (2019): 19–22. http://dx.doi.org/10.17721/1728-2195/2019/1.109-4.
Повний текст джерелаАнотація:
This paper studies the principles of good faith and the cooperation between judges and parties, which are considered as highly relevant in current civil procedural law. According to many scholars, a new approach to defining their roles allows to overcome the basic urgent problems of modern civil justice – duration, high costs and, to some extent, the complexity of the trial. At the same time, its implementation leads to a positive impact on ensuring the efficiency and access to justice, which are integral parts of the rule of law. The evolution of the idea of directing litigation to peaceful compromise of parties and settling their dispute, has become of tremendous importance since the middle of the last century and today is considered as one of the inherent features of modern litigation. The idea ofgood faith in participating in the process was much developed in the first codes of civil procedure in Europe, in particular, in Austrian Code of Civil Procedure of 1898 and in French Code of Civil Procedure of 1806. The national legal doctrine contains the reflection of F. Klein's research, in particular the loyal cooperation between a judge's and parties' ideas. Later the national legislation of most European states applied the abovementioned during the reforms. Within the ELI-Unidroit Project of European Rules of Civil Procedure the Working Group on Procedural Rights used the idea of court and parties cooperation as the main ground and proposed to joint responsibility introduce with the aim of fair and just trial and avoiding of the traditional problems of two procedure models (A. Uzelac). The provisions of civil procedural law of many states, in particular of Ukraine, have more fully realized the idea of inadmissibility of abusing the procedural rights, which are justly regarded as an element of the principle of cooperation of the court and the parties in civil proceedings.
21
Krausz, Bernadett. "The Institution of the Maintenance of Minors in France and England and Wales in the Light of Historical Development." DÍKÉ 6, no. 2 (June 17, 2023): 193–205. http://dx.doi.org/10.15170/dike.2022.06.02.14.
Повний текст джерелаАнотація:
The paper gives an overview of the institution of the maintenance of minors in France and in England and Wales in the light of historical development, by giving a glimpse into the main reforms of French and English family law. In France, the institution is regulated in the Civil Code, in England, separate acts establish the basic concepts and principles. In both countries underage children are entitled to maintenance and the obligation does not cease, when they reach the legal age. The parents are the primary obligees. The principles of calculating the amount of maintenance are similar, the parents’ income conditions and the children’s needs and education are taken into account. The basic principles, the material law aspects are very similar between the two states, but from the procedural law point of view they have different systems.
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Clay, Thomas. "La réforme des articles du Code civil sur larbitrage en France." ASA Bulletin 35, Issue 1 (February 1, 2017): 40–54. http://dx.doi.org/10.54648/asab2017004.
Повний текст джерелаАнотація:
Even if it covers many areas of French procedural law, the “21st Century Justice” law specifically encourages Alternative Dispute Resolution (ADR), with an entire title dedicated to it. The new law adopts a broad concept of ADR, including mediation, conciliation, participatory procedure, negotiation and arbitration. It modifies, sometimes substantially, their legal regimes in order to develop and facilitate their use. The purpose of this article is to trace the story of this reform and explain its content, in the context of arbitration only. In relation to the domestic arbitration agreement, Article 2061 of the French Civil Code has been rewritten in two major ways: on the one hand, its scope has been significantly broadened since it can now be introduced in all contracts, including civil ones, as long as the parties freely dispose of their rights and agreed to it. This means that the arbitration agreement is no longer reserved for professionals only. On the other hand, when it is part of a consumer contract, it is also valid but the consumer will be able to waive it once the dispute has arisen. The modernity of its solutions and the fair balance between the parties are the two sides of this small revolution that projects arbitration into the 21st century.
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Lilkoff, Lubin. "Le règlement des litiges commerciaux dans un système sans tribunaux de commerce : l'expérience québécoise." Les Cahiers de droit 24, no. 3 (April 12, 2005): 505–30. http://dx.doi.org/10.7202/042559ar.
Повний текст джерелаАнотація:
Quebec's Civil Code acknowledges the existence of a dual regime including both civil and commercial juridical operations. This distinction, which is derived from French Law, also exists in Belgian and German Law. These countries have created specialized commercial courts or tribunals with jurisdiction over commercial matters. They are staffed with judges drawn from business. One may ask how in fact a dualistic system of this nature functions in Quebec, given the absence of such special commercial tribunals. It may be noted that although there is no body of commercial law dealing exclusively with traders, there exists in fact a system of business law comprehensive enough to apply also to non-traders (Part I). In addition, the informal nature of the procedural rules, as well as the background of the judges who are selected mainly from the ranks of practising lawyers, permits one to discern a close resemblance between litigation before these courts and the conduct of trials before commercial tribunals (Part II).
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Zvyagintsev, Stepan E. "Urgent applications in French administrative justice." RUDN Journal of Law 25, no. 2 (December 15, 2021): 482–503. http://dx.doi.org/10.22363/2313-2337-2021-25-2-482-503.
Повний текст джерелаАнотація:
The institute of urgent judicial decisions is a special procedure for administrative justice bodies in France, which allows to prescribe effectively and quickly a wide range of necessary measures (from the appointment of expert examinations to the suspension of normative administrative acts) and to protect the legitimate interests of individuals and organizations. There are two main categories of urgent judicial decisions, accordingly their functional purpose. The procedural features of urgent judicial decisions are related to the obligation of the French administrative courts to establish conditions for urgency and the need to prescribe certain measures as a matter of urgency. These criteria, being evaluative, are specified by the jurisprudence of the French administrative courts, according to which the judge determines whether there is a threat of causing immediate and sufficiently serious harm to the interests of the applicant and whether there is a need to take urgent measures, taking into account the circumstances of the case. At the same time, the urgent applications judge does not consider the case, but sets temporary measures that can be changed in the course of further proceedings. The article suggests creating mechanisms in Russian law that are similar to those existing in the French legal regulation of urgent judicial decisions in administrative cases. In particular, the author suggests expanding the powers of Russian courts to suspend normative administrative acts and individual decisions when courts take measures of preliminary protection in administrative claims.
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Kil, Jan. "JUROR JURISDICTION AS A FORM OF PARTICIPATION OF THE SOCIAL FACTOR IN CRIMINAL PROCESS (PART II)." Roczniki Administracji i Prawa 1, no. XXII (March 31, 2022): 161–73. http://dx.doi.org/10.5604/01.3001.0015.9102.
Повний текст джерелаАнотація:
The article is devoted to the problems of juror jurisdiction in criminal matters. The second part of the study discusses assize courts throughout history in French criminal process. The analysis covers also the reception process of the institution of assize courts in the historical development of criminal procedural law. The problems of juror jurisdiction are also presented in the context of Polish traditions of justice. The study discusses advantages and disadvantages of juror jurisdiction and attempts to answer the question if the juror jurisdiction model should be considered a correct – from praxeological and axiological perspective – form of participation of the social factor in criminal process.
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Arabeyre, Patrick. "The first methodical collection of French royal statutes: the Tractatus ordinationum regiarum by Étienne Aufréri (end of the 15th century – beginning of the 16th century)." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 79, no. 3-4 (2011): 391–453. http://dx.doi.org/10.1163/157181911x596385.
Повний текст джерелаАнотація:
AbstractLittle is known about the history of the first collections of French royal statutory law which appeared towards the end of the 15th century and the beginning of the 16th century. Étienne Aufréri's Tractatus ordinationum regiarum, one of the first collections to appear in print (1513–1514) and the first methodical collection of the kind, sheds some light on those early developments. The history of the collection (viz. its authorship, date and successive versions), its structure and its character (as a distinctive type of legal work, with its specific subject-matter and drafting technique) show that it was a learned undertaking at a time when the Toulouse Parlement (i.e. the supreme regional court of justice) was establishing its own particular tradition of records and when the royal procedural system was asserting its predominance.
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Van Eekert, Simon. "Presumptions of Law Concerning Causality in Environmental Cases: Towards Collective Presumptions of Fact?" Journal of European Tort Law 14, no. 3 (November 30, 2023): 235–71. http://dx.doi.org/10.1515/jetl-2023-0015.
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Abstract Presumptions of law are an appealing concept to remedy situations of causal uncertainty. In many pieces of EU legislation in various areas such as competition law, AI law and environmental law, presumptions are presented as a solution for plaintiffs that encounter problems regarding causal uncertainty in their compensation claims. Oftentimes, however, insufficient attention is paid to the possible risks of over- and under-compensation, the available alternatives and the functionality of these presumptions. In this article, I argue that a presumption of law fulfils two functions. First, this paper aims to address situations of evidentiary deficiency (individual goal). Second, it aims to facilitate the procedural road to compensation in cases of mass harm (collective goal). A comparative analysis of Belgian, Dutch and French law reveals that there are many ways to shape a presumption and its consequences. In conclusion, I argue that presumptions should always be tailored to a certain case and should attempt to reconcile the collective goal with the individual goal. To that end, policy-makers should aim to create collective presumptions of fact, based on the statistical evidence in a certain mass harm case, as opposed to presumptions of law.
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Tomić, Zoran. "Content of the full jurisdiction: Serbian law 'de lege lata' and 'de lege ferenda'." Pravo i privreda 59, no. 3 (2021): 207–26. http://dx.doi.org/10.5937/pip2103207t.
Повний текст джерелаАнотація:
The paper is dealing with the notion and types of full jurisdiction - in French and then in Serbian legislation as well as in judicial practice. The author advocates for the extension of mentioned kind of administrative jurisdiction de lege ferenda. To be able to make proposed changes, it is necessary to meet the following conditions, as constitutive assumptions, establishment of the funded system of administrative courts, i.e., a two-tier system of administrative justice, and the rule of public hearing before the administrative court in accordance with international and domestic principle of the right to fair trial. The paper starts with the definition of full jurisdiction meaning that administrative court has the power to resolve validly the controversial legal issue, regardless of whether it was preceded by a legal procedure or not as well as regardless of whether the legal relationship is resolved by merits or only ends for procedural reasons.
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Rojot, Jacques, and Alice Le Flanchec. "The ‘Open Door’ Policy at IBM France: An Old-Established Voice Procedure that Is Still in Use." International Journal of Comparative Labour Law and Industrial Relations 25, Issue 4 (December 1, 2009): 411–29. http://dx.doi.org/10.54648/ijcl2009027.
Повний текст джерелаАнотація:
This paper deals with Alternative Dispute Resolution in labour relations within a company in the French context. By contrast with the United States and Canada, mediation and arbitration are rarely used in France for resolving individual or collective labour relations disputes. It is therefore interesting to study such voice procedures in labour relations in France and analyse their impact on procedural justice and equity within the company. The study also analyses the incentives to use mediation/arbitration, in labour relations, as well as the disincentives. It highlights the importance of information and communication with the employees in fostering positive attitudes to it and reducing their fears. This is illustrated by an empirical study of the French subsidiary of the IBM Corporation. We focus our attention on the IBM ‘open door’ policy and describe the results of a quantitative statistical analysis of 203 respondents.
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Horoshko, Valentyna, Yehor Nazymko, and Yurii Pavliutin. "CRIMINAL PROCEDURE LAW OF UKRAINE IN THE CONTEXT OF EUROPEAN INTEGRATION: PROBLEMATIC ECONOMIC AND LEGAL ISSUES, WAYS OF REFORMING." Baltic Journal of Economic Studies 8, no. 3 (September 30, 2022): 48–52. http://dx.doi.org/10.30525/2256-0742/2022-8-3-48-52.
Повний текст джерелаАнотація:
The subject of the study is the coverage of problematic issues and ways of reforming the criminal procedure legislation of Ukraine in the context of European integration. Methodology. The methodological basis of the study is a dialectical method of scientific knowledge, through the application of this method the legal, functional, organizational and procedural aspects of methodological approaches to the understanding of problematic issues are considered and the ways of reforming the criminal procedure legislation of Ukraine in the context of European integration are considered. The results of the article analyze the current criminal procedure legislation of Ukraine and the legislation of the countries of the European Union. When analyzing the French criminal procedure, two main features can be identified, which distinguish it from the Anglo-Saxon legal system and are criticized by experts from Great Britain and the United States. In France judges are vested with considerable powers. The first feature of French criminal procedure is the institution of preliminary interrogation of the accused by the presiding judge. The judge verifies the sufficiency of the evidence for a conviction. Conclusion. So, based on the above, it is possible to conclude that the Criminal Procedure Code of Ukraine was created in the spirit of democratic values, but some of its norms need to be reformed in order to improve the mechanism of protection of the rights, freedoms and legitimate interests of an individual. The practical experience of France, the Federal Republic of Germany and Great Britain is relevant. The shortcomings of the Criminal Procedure Code of Ukraine are highlighted. The prospects for their reform are outlined and amendments to the current legislation in the context of European integration are proposed. Prospects for further research: a) the study of the experience of individual foreign countries in the context of the improvement of criminal procedural norms; b) analysis of the possibility of harmonization of criminal procedural legislation of Ukraine with the norms of the European Union; c) development of an effective mechanism of relations between the subjects of criminal proceedings. The issue of the relevance and admissibility of evidence is also important. Articles 87-89 of the CPC of Ukraine establish the grounds and procedure for declaring evidence inadmissible. However, judicial practice shows a large number of criminal proceedings against public persons, which the court had to terminate due to the lack of evidence, due to the inadmissibility or improper nature of the evidence. The authors believe that the legislative regulation of the process of collecting evidence in the UK is a positive experience for Ukraine.
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Mohs, Florian, and Ingeborg Schwenzer. "Arbitration Clauses in Chains of Contracts." ASA Bulletin 27, Issue 2 (June 1, 2009): 213–35. http://dx.doi.org/10.54648/asab2009022.
Повний текст джерелаАнотація:
To foster multi-party arbitrations French, US, and Austrian law allow, with significant nuances, for the extension of arbitration clauses through chains of contracts to claims by the ultimate buyer as a third party to the contract containing the arbitration clause against the first seller/manufacturer. The possibility of an extension of an arbitration clause in the case of a chain of contracts is inextricably intertwined with the substantive law question of whether or not the ultimate buyer may take direct recourse against a remote seller. Its admissibility cannot be regarded as a principle of international arbitration but is solely given if the domestic law of a jurisdiction that acknowledges the extension of an arbitration clause to a third party in a chain of contracts applies. Because no direct contractual relationship exists between the ultimate buyer and the remote seller, the buyer’s direct claims sound in tort. The law applicable to these claims by virtue of the conflicts rules on products liability or tort should decide on the extension of the arbitration clause as well. Remaining procedural disadvantages for the middle-man in a chain of contracts can only be addressed by contract drafting.
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Lazić-Smoljanić, Vesna. "Enforcing annulled arbitral awards." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 39, no. 1 (2018): 215–40. http://dx.doi.org/10.30925/zpfsr.39.1.7.
Повний текст джерелаАнотація:
This contribution examines the procedural aspects of the enforcement of arbitral awards that were set aside in the jurisdiction where they were rendered. It focuses on recent cases in the United States and the Netherlands, which adopted a different line of reasoning than the approach taken by French judiciary many years ago. According to the latter, an arbitral award set aside in the ‘country of origin’ may be enforced in France in reliance on national law. Namely, French law on enforcement is more favourable than the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral. The courts in the United States and in the Netherlands in recent cases have taken a different approach. They examine the judgment setting aside the award and ignore the effects of the annulment in certain circumstances. Even though there are some common denominators, there are substantial differences between the line of reasoning of the courts in the US and the Netherlands. They remain distinct although a more recent decision of the Dutch Supreme Court emphasises an exceptional nature of such enforcement so that the difference between the two approaches may seem somewhat mitigated. However, a closer look reveals that substantial discrepancies between the courts in these two jurisdictions have remained. The article provides for a critical view on the enforcement of annulled arbitral awards in general. In particular, it points to drawbacks of variety of unilateral approaches amongst various jurisdictions. Additionally, it suggests the development of internationally accepted standards for the sake of legal certainty and predictability of arbitration, should the acceptance of the enforcement of annulled arbitral appear a majority view amongst academics and arbitration practitioners.
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Kolomiiets, N., and M. Yushchenko. "Features of pre-judicial investigation in criminal proceedings in foreign countries." Analytical and Comparative Jurisprudence, no. 1 (March 20, 2024): 583–88. http://dx.doi.org/10.24144/2788-6018.2024.01.102.
Повний текст джерелаАнотація:
The scientific article is devoted to the definition of certain features of the procedure for conducting a pre-trial investigation in criminal proceedings of foreign countries. The origins of the separation of the «preliminary investigation» as a separate stage of the criminal process are established, as well as the relationship of national legal traditions and types of legal systems with the corresponding standards inherent in the criminal process is traced.
The analysis of the criminal procedural legislation of the Federal Republic of Germany, the Kingdom of Spain, Great Britain and the French Republic was carried out. The main aspects of the pre-trial investigation and inquiry of the Federal Republic of Germany have been studied. It has been established where criminal proceedings begin, how the interaction between prosecutors and police officers is configured, which is free evidence. Attention is focused on the types of suspicions depending on the degree of probability and functional purpose.
It was determined that the pre-trial investigation as an independent stage of criminal proceedings, according to the Criminal Procedure Law of Spain, is always the first in the criminal process. However, at the same time, the inquiry is in no way formally separated from the pre-trial investigation. The prosecutor and the investigating judge are united with the common goal of identifying the person who committed the crime and collecting the necessary evidence. The specifics of this stage depending on the type of proceedings are also indicated.
The characteristic features of criminal proceedings in Great Britain, which do not include the stage of pre-trial investigation at all, are considered. Despite the possibility of the defense party to collect evidence independently, the police's activities are considered extra-procedural, and therefore all the factual data collected by them need to be presented to the magistrate and their further confirmation.
The position and procedure for starting an investigation under French law is outlined. Her criminal process considers inquiry and preliminary investigation as separate independent stages. First of all, an inquiry is conducted, then a criminal prosecution is initiated, after which a preliminary investigation begins.
The conclusion of the article emphasizes the need for coordinated work of law enforcement agencies based on the principles of the rule of law, legality and justice. The necessity of applying the experience of foreign countries in improving the pre-trial investigation of Ukraine is argued.
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Mykytyn, Yu I. "Defining Approaches To The Classification Of Criminal Procedure Policies Of EU Member States." Actual problems of improving of current legislation of Ukraine, no. 51 (August 6, 2019): 166–77. http://dx.doi.org/10.15330/apiclu.51.166-177.
Повний текст джерелаАнотація:
This article analyzes the approaches to the classification of criminal procedural policiesof EU Member States. The basic variants of classifications of models (types) of criminal procedure policies of the EU Member States are investigated.
It is considered that in the context of defining approaches to the classification of criminal procedural policies of the Member States of the European Union, it would be optimal to simultaneously use the terms «model» and «type» of criminal procedural policy as universal synonymous categories, that reflecting both European and Ukrainian legal traditions.
Despite the tendency to unification and converge criminal procedural legislation of EU Member States on the basis of EU standards, criminal procedural policies in such countries have significant differences.
Belonging to a particular model (type) of criminal procedure policy is determined on the basis of the content of the legal system of a particular EU Member State and is conditioned by various factors.
First of all, there are two basic models (types) of criminal procedural policies of EU Member States at the global level: Anglo-Saxon and Continental (Romano-German). The Continental (Romano-German) model (type) of criminal procedure policy has the following types: French (Romance), German and Swedish (Scandinavian).
The German type (model) had the greatest influence on the formulation of criminal (type), the following subspecies are distinguished: Central and Eastern European, Baltic, Balkan.
The models (types) of criminal procedure policies of EU Member States can be classified on the basis of such a criterion as the form of the state. Thus, the form of state government can distinguish the constitutional monarchical model (type) of criminal procedural policy and the republican model (type) of criminal procedural policy. In turn, the republican model (type) of criminal procedural policy is of two types, semi-presidential and parliamentary. It should be emphasized that the EU Member States are not characterized by the presidential kind of the model (type) of republican criminal procedural policy. According to the form of the state system there are a unitary and a federal model (type) of criminal procedure policy. According to the form of state regime, all EU Member States belong to the democratic model (type) of criminal procedure policy.
One of the criteria for the classification of models (types) of criminal procedural policies is the methodology of codification of criminal procedural law. According to this criterion, it is possible to distinguish classical continental, Swedish (Scandinavian) and Anglo-Saxon model (type) of criminal procedure policy.
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Ирина Викторовна, Бухарова. "FOREIGN EXPERIENCE IN THE USE OF CONCILIATION PROCEDURES IN THE ARBITRATION PROCESS: PROSPECTS OF APPLICATION IN RUSSIA." NORTH CAUCASUS LEGAL VESTNIK 1, no. 2 (June 2023): 68–74. http://dx.doi.org/10.22394/2074-7306-2023-1-2-68-74.
Повний текст джерелаАнотація:
The article examines the legislation of foreign countries on the reconciliation procedure, namely the provisions regulating the work of conciliation procedures that are not represented in Russian legislation. The author identifies possible problems of applying the conciliation procedures discussed in the article on the territory of the Russian Federation. The relevance of the work lies in the high importance of the institution of reconciliation as a way of settling a legal dispute. Conciliation procedures are now important in resolving conflicts between the parties to the dispute, as well as in increasing citizens' confidence in the court and the judicial system as a whole. The purpose of the study is to analyze the provisions of the legislation of foreign countries on conciliation procedures in the arbitration process and to identify the possibility of using previously unknown to Russian legislation conciliation procedures. The subject of the study is the norms of the procedural legislation of the French Republic, the Norwegian Law on Arbitration, as well as the legislation of the United States of America on conciliation procedures. By analyzing the norms of the current foreign legislation and doctrine, the author substantiates the practical impossibility of applying the conciliation procedures presented in the article. This conclusion is made on the basis of an analysis of the provisions of the arbitration procedural law of Russia regulating reconciliation issues. The author notes that the current state of the institute of reconciliation in Russia simply will not be able to properly settle the issues of a new type of conciliation procedure.
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Nössing, Elisabeth. "Divorce on grounds of discord: Did the Moroccan family law reform bring the guarantee of divorce for women? An ethnographic perspective on the changing landscape of divorce. The Mudawwana a decade on." Asiatische Studien - Études Asiatiques 74, no. 1 (November 18, 2020): 35–65. http://dx.doi.org/10.1515/asia-2019-0025.
Повний текст джерелаАнотація:
AbstractThis article discusses the new divorce on grounds of discord procedure (taṭlīq li-š-šiqāq) within the context of the Moroccan family law reform of 2004. Literature available in English and French has, so far, focused primarily on the improvements the Moroccan family law reform has brought in regard to women’s rights. The reform is considered one of the most progressive legislative projects in the MENA region and a milestone for gender equality, notably the reform of divorce law. Divorce on grounds of discord was seen as the long-awaited divorce guarantee for women. However, legal scholars maintained that case law jeopardised the divorce guarantee. This legal-anthropological study is informed by fieldwork at the family court in Rabat, as well as official statistics, case law and the standard legal commentary. It aims to scrutinise how divorce on grounds of divorce is put into practice by the judiciary, how Moroccan men and women make use of it and how changes on a procedural and institutional level affect the implementation of the new divorce procedure. My empirical findings show that divorce on grounds of discord effectively guarantees Moroccan women’s right to divorce. Well beyond the discussion on women’s rights in divorce, I will demonstrate that, within a decade, divorce on grounds of discord developed into a standard divorce procedure for both men and women across socio-economical milieus and age groups.
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Granier, Thomas. "The Antrix Case: a case study of the principles governing the waiver to raise a procedural irregularity under french law." Revista Brasileira de Arbitragem 17, Issue 67 (September 1, 2020): 169–96. http://dx.doi.org/10.54648/rba2020094.
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Faisant, Maxime, Frédérique Papin-Lefebvre, Camille Rerolle, Pauline Saint-Martin, and Clotilde Rougé-Maillart. "Twenty-five years of French jurisprudence in criminal medical liability." Medicine, Science and the Law 58, no. 1 (November 6, 2017): 39–46. http://dx.doi.org/10.1177/0025802417737402.
Повний текст джерелаАнотація:
We report on a comprehensive 25-year study on criminal medical liability in France, undertaken to establish trends in the number of cases being brought before the criminal courts. We did this by interrogating the database on the Légifrance website using a Boolean equation (‘ pénal’ (criminal) AND ‘ médecin’ (physician) OR ‘ docteur’ (doctor)). In total 539 cases were selected, in which the status of the physician either influenced the punishment imposed, or was a prerequisite for the commission of the offence. The results of the search produced two outcomes: offences and the dates of the most recent criminal judgements (which had been left blank). Further data were also collected: references to court cases, hearing dates, offence dates, procedural time limits, numbers of accused parties, types of punishments and physician characteristics. The number of court hearings increased from the 1980s until the late 1990s. Since then, it has remained stable at around 25 cases per year. Of the defendants appearing before the courts, 39.2% have been found guilty. On average, 10 to 13 physicians every year – that is, one per month – are punished. Those most often punished are obstetrician-gynaecologists (13%), followed by intensive care anaesthetists (11%) and then by general practitioners (6.7%). The offences most frequently occurring are manslaughter (36.5%), illegal profits (12%), unintentional injuries (11.5%) and sexual offences (10.1%). The results are most reassuring in terms of the risks posed by the practice of medicine in France. Such a risk does indeed exist; however, it is at a low level and stable.
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Orzeszyna, Krzysztof. "Prawo do naturalnego i godnego umierania." Studia Iuridica Lublinensia 29, no. 4 (September 30, 2020): 221. http://dx.doi.org/10.17951/sil.2020.29.4.221-232.
Повний текст джерелаАнотація:
<p>The article addresses the issue of the right to natural and dignified dying in the case-law of the European Court of Human Rights. The right to life enshrined in Article 2 of the European Convention on Human Rights is currently balanced in judicial practice with the right to privacy. The right to effectively demand inflicting death is usually located in the sphere of autonomous human decisions. However, not only is the construction of such a right contrary to the principle of dignity of every person, but it would erode the guarantees vested in any terminally-ill person. The analysis of Strasbourg’s case-law setting a common standard for the ECHR Member States does not make it possible to assume the existence of the right to death as a subjective right of an individual. In the area of the protection of human life, States are obliged to take positive action. That relatively established case-law was clearly modified in the case <em>Lambert and others v. France</em>, as the Court crossed the red line in favour of passive euthanasia, accepting the vague French procedural rules recognizing artificial nutrition and hydration of the patient as a form of therapy that may be discontinued.</p>
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Hatim, Anouar. "Promoting the defence´s role in the preliminary investigation, a challenge in maghrebian criminal proceedings." Age of Human Rights Journal, no. 19 (December 19, 2022): 47–69. http://dx.doi.org/10.17561/tahrj.v19.7123.
Повний текст джерелаАнотація:
Maghrebian criminal procedures have long been based on a theory inherited from French legislation, based on the relationship between the effectiveness of police investigations and the weakening of the role of the lawyer, relying on the principles of the inquisitorial system, in particular the principle of secrecy that governs the entire preliminary phase of the trial. Through this article, the authors attempt to refute the latter theory, proving that any strengthening of the role of the lawyer during the preliminary investigation constitutes a deterrent and protection of the authorities against allegations of torture and ill-treatment, and a decisive means to guarantee the protection of the rights of the accused, and therefore, a contribution to the consecration of the efficiency of the investigations and the procedural fairness.
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Dauchy, Serge. "Why did Louis XIV establish High Courts of Justice in North America?" Tijdschrift voor Rechtsgeschiedenis 88, no. 3-4 (December 23, 2020): 440–68. http://dx.doi.org/10.1163/15718190-00880a15.
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Summary Why did Louis XIV establish high courts in the distant and sparsely populated North-American colonies? The logic of the establishment of the Sovereign Council of Québec in 1663 and the Superior Council of Louisiana in 1712 is indeed in no way similar to the one which led to the creation of high courts in the metropolitan territories previously under foreign sovereignty. In the colonies, there was no need to safeguard the provincial privileges, in particular that to be judged in accordance with the local customs and procedural rules. Historians have emphasized the idea that justice foremost asserted the king’s authority on his overseas territories and France’s position on the international scene. Colonial institutions were thus merely considered as extensions of the metropolitan model. This paper proposes to study the high courts of New France through the prism of legal transplant theories, focusing on the objectives and expectations of the donor rather than on their objects or on the obstacles faced by the receiver. We assert that the overseas high courts were a means to define and orientate the French colonial policy rather than an end in themselves. Their judicial and, above all, regulatory competences made them indeed a particularly suitable instrument for the fulfillment of the monarchy’s political and economic expectations.
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Nestertsova-Sobakar, Oleksandra. "Statute of civil proceedings of 1864: history of adoption, main provisions and its impact on the Ukrainian provinces." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 4, no. 4 (December 29, 2020): 95–100. http://dx.doi.org/10.31733/2078-3566-2020-4-95-100.
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The article deals with the main factors that caused the authorities to take the steps of fundamental changes in the civil procedural legislation of the Russian Empire. It has been pointed out that in the 1840s, Nicolas I paid attention to the problems, and in 1848 issued a resolution demanding the creation of a special institution for drafting amendments to the legislation. The study highlights the process of drafting and preparing project of the law. It is noted that the French experience (Code of 1806), as well as the achievements of Austria and Prussia in the field of civil process, were used in the drafting of the Statute, which at that time scientists critically and analytically worked on foreign regulations. It is stated that the authorities rejected the idea of changing the existing system of civil procedural legislation and decided to implement a radical reform. It is said that the experts identified and grouped the major shortcomings that led to the unsatisfactory state of civil proceedings (25 points in total), and highlighted the main progressive and necessary provisions that were included in the new Civil Procedure Statute (competitive nature of the process, publicity streamlining the effective vertical of the courts, introducing the concept of a jury). Due to the reform of 1864, civil justice was separated from criminal justice. The structure of the Statute of Civil Procedure (general provisions, four books, totaling 1460 articles) is also covered. The article deals with the differences in the implementation of the Charter (simultaneous or phased implementation). The question of the extension of the force of law in the territory of the Ukrainian provinces is raised (in 1868 the Charter came into force in Kharkiv for the first time in Ukrainian lands and later in the South and Right-Bank Ukraine).
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Gambaro, Antonio. "Abuse of rights in civil law tradition." European Review of Private Law 3, Issue 4 (December 1, 1995): 561–70. http://dx.doi.org/10.54648/erpl1995042.
Повний текст джерелаАнотація:
Abstract. The doctrine of abuse of rights has a long history but little future. The jurists who developed the jus commune could draw on Roman sources to support the principle that the exercise of one’s rights could not be relied on to justify intentional harm to another. In mediaeval times this principle was mainly used to prevent unsuitable use of building rights and assist in town planning. The requirement of intention was diluted by reference to numerous presumptions. The Napoleonic code avoided the need to rely on the doctrine by including certain zoning and town criteria within the code, but it was called upon later in the nineteenth century as a way of dealing with conflicting interests in the way land was used and the activities allowed on the land. This use of the doctrine was in turn rendered otiose when the tort provisions of the civil code began to be interpreted in an extensive manner which allowed conflicting interests to be weighed in determining the existence of fault liability. The doctrine of abuse of rights has thereafter played only a restricted role in the French legal system. It has been codified in relation to abuse of procedural rights within the justice system. The experience of other legal systems is similar. Although the principle prohibiting the abuse of rights was codified in Switzerland, Germany and Italy, these provisions have only rarely been relied on in practice. The need to prove intention is too onerous. Other provisions of the codes, such as the requirement of good faith in §242 BGB have enabled an equitable result to be achieved without resort to the doctrine of abuse of rights. It has also been subsumed within traditional principles such as venire contra factum proprium and unconscionability. Indeed the abuse of right theory is too rigid to provide an adequate resolution of the underlying problem: the balancing of conflicting interests. More flexible approaches have rendered the doctrine largely superfluous.
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Wnukiewicz-Kozłowska, Agata, and Urszula Dorota Drozdowska. "Causal Effect Relationship in Medical Cases. An Old Problem in a New Scenario. Commentary to CJEU Judgment (Second Chamber) of 21 June 2017, N.W. & Others V. Sanofi Pasteur MSD & Others, Case C-621/15, EU:C:2017:484. Approbative Gloss." Review of European and Comparative Law 46, no. 3 (August 21, 2021): 263–90. http://dx.doi.org/10.31743/recl.12264.
Повний текст джерелаАнотація:
This commentary evaluates the problem in assessing the role of a causal connection between damage and the use of a defective medical product, specifically a vaccine. The judgment of the Court of Justice of the European Union (CJEU) in the Sanofi Pasteur Case, which allowed the possibility of recognizing damage claims, even in cases where the prevailing scientific theory claims that there is no scientific evidence of a causal link between a vaccination and the disease, became a base for consideration. Consequently, procedural solutions (such as the standard of proof required, the admissibility of prima facie evidence reasoning and other solutions in cases of an uncertain causation) remain to be decided by national law. The authors assessed two legal systems: the French and Polish legal systems in the context of how to resolve these dilemmas and to describe the impact of the above-mentioned judgment on the case-law of French and Polish courts as regards the application of Directive 85/374/EEC. As a result, they concluded that the most important interpretative motive has become the individual interest of the vaccination’s victim as a consumer of medical services. It seems to be in accordance with Directive 85/374/EEC, which is motivated by the necessity of approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products. However, since the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property, in countries belonging to the European Union, the authors wonder how the commented judgment will affect the further development of consumers protection against defective vaccines.
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Dosmogombetova, Vera, Nurgul Seilbekova, Saltanat Abisheva, Aidos Yeskendirov, and Andrey Brylevsky. "The victim as a prosecuting party: Their rights and procedural safeguards." Scientific Herald of Uzhhorod University Series Physics, no. 55 (January 31, 2024): 79–89. http://dx.doi.org/10.54919/physics/55.2024.7pgh9.
Повний текст джерелаАнотація:
Relevance. The relevance of exploring the status of the victim as a party to the prosecution is conditioned upon the undoubted advantages of the institution of private prosecution and the shortcomings of its regulatory enshrining in the national legislation. Despite the conventional role of victims as witnesses for the prosecution, victims have a list of procedural rights and freedoms designed to facilitate their full participation in the judicial process, including criminal prosecutions. Purpose. The purpose of this research is to analyze the procedural position of the victim as a subject of criminal prosecution by the national regulations of Kazakhstan and to disclose their functions in the implementation of proceedings on a private prosecution. Methodology. The research methods were general scientific methods of analysis and synthesis, which allowed for identifying the key powers of the injured party in the status of a private prosecutor and characterizing the legal guarantees reserved for them. Therewith, to highlight the considerable differences in the regulation of the institution of private prosecution in the republics of the unified legal system, the method of comparison was used, by which the procedural rules of Uzbek, Polish and French law were analyzed. Results. The study identifies the multifaceted nature of the legal concept of the victim in criminal proceedings under the legislation of the Republic of Kazakhstan, extending rights and obligations to both natural persons and legal entities. The results examine the dispositive right to prosecute granted to victims, establishing a mechanism for its realization through private prosecution. Furthermore, the analysis reveals specific features of private prosecution in Kazakhstan, France, and Poland, highlighting the importance of procedural safeguards in ensuring a fair trial and the victim’s ability to exercise their prosecution function effectively. Conclusions. The research materials are of practical value to every category of the person affected by a criminal offence against them, seeking to avail themselves of the opportunity to freely pursue their rights and interests in criminal proceedings. The subject is rather diverse and controversial, thus, the results of this research work, and the conclusions drawn from them, will serve as a necessary foundation for further research.
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Rossinskiy, Sergey B. "The system of pre-trial proceedings in the criminal proceedings of the Russian Federation: Factors of formation." Vestnik of Saint Petersburg University. Law 12, no. 3 (2021): 621–42. http://dx.doi.org/10.21638/spbu14.2021.309.
Повний текст джерелаАнотація:
The article is devoted to the analysis of historical prerequisites that predetermined the distinctive nature of the national system of Russian pre-trial proceedings as the initial stage of criminal procedure. By analyzing the peculiarities of domestic criminal procedure legislation, and the development of judicial and law enforcement agencies, in addition to drawing comparative parallels with foreign mechanisms for solving and investigating crimes, the author assumes that the gradual autonomy of the Soviet and then Russian system of pre-trial proceedings was a direct result of the well-known historical cataclysms associated with the Soviet power establishment in 1917 and its fall in 1991. It is noted that a rather unique model, based on the chaotic mixing and interweaving of various, including poorly compatible, elements inherent in various models of criminal procedure (French, German, Anglo-Saxon) of pre-trial proceedings has been formed in Russia at present. These elements are linked by means of specific domestic criminal procedure doctrine’s “inventions”, which are reflected in the relevant provisions of criminal procedure law and practical recommendations for law enforcement practice. The modern Russian model of pre-trial proceedings is expressed in the integration of the functions of the “police” and “justice”, in providing law enforcement agencies criminal procedural powers of a forensic nature to collect full-fledged evidence for the upcoming court hearing. According to the author, this explains many doctrinal and legislative problems of Russian pre-trial proceedings, which for many years have had a negative impact on judicial and investigative practice (problems related to the initiation of criminal proceedings; problems of practice in proving the results of operational-search activities; problems related to the legal regulation of the detention of a suspect, etc.). The research concludes that the legislator should stop the law-creating “throwing”, the policy of a chaotic mixing of various elements inherent in different types of criminal proceedings, and, finally, choose one single model that is the most suitable for modern Russia with its laws and realities of development.
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Contini, Francesco. "The Never-Ending Crisis of Italian Justice: Role and Responsibility of its Governance System." Law, Technology and Humans 5, no. 1 (May 30, 2023): 153–77. http://dx.doi.org/10.5204/lthj.2695.
Повний текст джерелаАнотація:
This article analyses four critical dimensions of the Italian justice system’s enduring condition critical: poor predictability of judicial decisions, lack of integrity, low trust, and excessive length of judicial procedures. While the first three critical areas have multiple causes, the role of the dual judicial governance structure, with competencies split between the Ministry of Justice and the Judicial Council, is identified as a relevant cause of lengthy procedures. Judicial statistics show how procedural delays are caused by the inefficient use of available resources due to obsolete allocation mechanisms and high variations in courts’ efficiency. This article argues that cutting-edge resource-allocation systems and integrated court management mechanisms based on workload or performance indicators demand a sustained and coordinated effort between the Ministry and the Council, which may be hard to achieve. More generally, the different constituencies and the competence split between the two bodies make the implementation of integrated judicial management approaches unlikely. The explanation is based on structural and institutional features common to all systems in which two bodies share responsibility on the same policy and managerial areas, so findings are potentially relevant to all judiciaries with this feature. The analysis also gives a reason for the negative correlation between judicial governance settings based on the French or Italian model and judicial efficiency.
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Mohamed BARAK, Ahmad. "CRIMINAL PROTECTION FOR INVESTMENT IN PALESTINIAN AND COMPARATIVE LEGISLATION." International Journal of Humanities and Educational Research 05, no. 05 (October 1, 2023): 272–95. http://dx.doi.org/10.47832/2757-5403.22.14.
Повний текст джерелаАнотація:
In normal conditions, States seek to improve and strengthen their investment situation by attracting investment and capital, especially foreign ones Therefore, many States, when legislating investment laws, focus on how to encourage investors to invest within them. This is what the State of Palestine and the Arab States generally tended to do through their incentives, guarantees, customs exemptions or taxfixing mechanism, all with a view to attracting them to invest within their States The emergence of investment contracts dates back to the beginning of the nineteenth century, with the advent of the industrial revolution in Europe and before the beginning of the First World War, many development projects involving airports emerged. And transportation routes where governments realized their importance, so they handed them over to investors, The French government is the first to apply international investment contracts in 1682, which were represented by the bot contract and the first Arab country to undertake international investment contracts was Egypt, where it entered into a contract to establish the Suez Canal The importance of the penal protection of investment, both internal and external, is not disputed, especially since legislators in many Arab States, especially Palestine, are geared towards supporting and encouraging investment that may be needed to protect investment, requiring some balance in attracting investment and protecting the national economy The study examined the legal regulation of penal protection for investment in Palestinian and comparative legislation and the adequacy of such penal protection contained in the Palestinian Investment Promotion Act No. 1 of 1998 and its amendments or the Palestinian Penal Code, particularly with certain Arab investment legislation, such as Egypt, Jordan, and the Sultanate of Oman, in a comparative analysis This research is based on the analytical descriptive approach in its preparation, through substantive and procedural treatment, from a legislative policy perspective to monitor the Palestinian legislator's role and comparison in investment protection, objectively at the levels of criminalization and punishment, as well as procedurally at both the evidentiary and investigative, trial and appeal stages The study concluded by moving away from the traditional approach to criminalization introduced by Jordan in 2011 with the development of an independent system of economic crimes, as well as Egypt's adoption of a law on economic courts at substantive as well as procedural levels
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Meena, Rishabha, and Advaith Rao. "The Context Of Text: Harmonizing Multilingual Texts Of The WTO." Journal of World Trade 58, Issue 2 (April 1, 2024): 295–314. http://dx.doi.org/10.54648/trad2024016.
Повний текст джерелаАнотація:
Legal traditions of international institutions reflect how language shapes the interaction of individuals from various legal disciplines. Institutions like the European Union (EU), United Nations (UN) and World Trade Organization (WTO) cater to multilingualism by publishing different linguistic versions of their texts. These organizations have their own divisions to promote multilingualism – it is the General Assembly and Conference Management for the UN; the Directorate-General for Translation (DGT) in the EU; and the Language and Documentation Services Division (LDSD) for the WTO. In the context of the WTO, coordination among different language groups in drafting WTO documents appears to be lacking. In addition to creating hurdles in substantive law, issues of multilingualism at the WTO also affect the procedural aspects of the dispute. This may have implications on third-party rights, selection of panellists, and timely resolution of disputes, thereby influencing a party’s strategy in a dispute. Against this background, the authors explore the issue of multilingualism at the WTO vis-à-vis the UN and EU by adopting a comparative research methodology. The Article provides recommendations in the form of best practices for improvements at the WTO in the context of multilingualism. WTO, multilingualism, VCLT, translation, DSU, European Union, United Nations, Spanish, French, language
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Epie, Lombe Viola. "An Appraisal on the Protection of the Rights of Accused Persons Standing Trial before a Competent Court of Law under the Cameroonian Legal System." Scholars International Journal of Law, Crime and Justice 5, no. 10 (October 7, 2022): 397–405. http://dx.doi.org/10.36348/sijlcj.2022.v05i10.001.
Повний текст джерелаАнотація:
An accused person, otherwise referred to in French as “le prevenu”, is a person who must appear before the trial court to answer to the charge brought against him whether in respect of a simple offence, a misdemeanor or a felony [1]. The Cameroon Criminal Procedure Code upholds the trial rights of accused persons. The code like the 1996 Constitution of Cameroon provides a platform for the implementation of criminal norms in the country. It also helps protect accused persons from arbitrary and unjust laws and sanctions. The present Criminal Code harmonized the two procedural codes that existed in Francophone and Anglophone Cameroon which were the Code d’Instruction Criminelle, and the Criminal Procedure Ordinance respectively. These trial rights of accused persons are upheld through a legal process by the trial courts of Law in Cameroon. This therefore means that the rights of accused persons are therefore suppose to be treated in a particular way during a criminal trial. These rights embody the right to be given something as well as the right to be allowed to do something in a specific manner. Adopting purely qualitative research method involving purely content analysis of cases and relevant statutes, this paper conclude that the government has made efforts in respecting the rights of accused persons standing trial before a competent court of law but its efforts are inadequate. Notwithstanding, finding a compromise between the respects of the rights of accused persons standing trial before a competent court of law with societal interest has never been a trouble-free assignment. To this end, the paper seeks to examine the protection of the rights of accused persons as are confectioned in the criminal procedure code and its extent of implementation as we sought to respond to the main question, to what extent does the Cameroon government guarantee the respect of the rights of accused persons standing trial before a competent court of law?