The Welfare of the Child as a Legal and Extra-Legal Value to be Protected in Civil Proceedings

Not Argued from But Prayed to. Who's Afraid of Legal Principles?

Legal principles, legal values, and legal norms are essentially part of the same notion. Often in legal literature, legal principles are considered to be legal norms, general legal norms, legal values etc. In fact, legal principles are just legal norms that different from the latter are legal norms of general application that ignore specific legal facts. They can be considered as basic norms that represent the general consensus on basic society understandings. As such they are also kinds of default rules of behavior. From this perspective, the legal principles are rules of human behavior that used to be considered as just, before the law started being written. Thus, legal values would be considered a more general legal norms vis-à-vis legal principles and legal norms. Nonetheless, the coexistence of these three notions shows the complexity of their correlation and gives us an initial idea on what we will go through in out attempt to perform of comparative analysis between them.

This article presents an outline of the basic issues of pursuing claims in Polish civil process and, more broadly, in Polish civil proceedings. It contains a short introduction to the history of the Polish Code of Civil Procedure, taking into account the period before World War II, the post-war period, and the period after the political transformation of 1989–1990. The article indicates a characteristic change in the leading principles of civil procedure in Poland over the last 30 years and the influence of foreign legislation and foreign doctrine on the position of Polish science in the civil process. The article explains the basic concepts of Polish civil procedural law, taking into account the last major amendment to the Code of Civil Procedure of July 4, 2019. It discusses the way to obtaining judicial legal protection in civil and non-litigious proceedings. When discussing specific issues of consideration of claims in civil proceedings, it should be kept in mind that every year Polish courts consider about 20 million civil cases (including arbitration cases), while criminal cases in Poland are considered 10 times less. This shows the leading role of civil law and judicial proceedings in the Polish justice system and public relations in Poland. This also means that a much larger number of civil lawyers are required in the legal field than lawyers specializing in criminal cases. In the general courts, we have much more judicial boards that apply the provisions of civil proceedings than the boards dealing with criminal cases. Some lawyers are engaged exclusively in the application of civil law and civil proceedings, for example, bailiffs, judicial assistants, judges of collegiums in civil cases, notaries. Also, the vast majority of legal advisers provide legal services in civil cases, although they are also allowed to act as defenders in criminal cases.

The action of a taxpayer when trusting in information concerning the content and interpretation of tax law obtained from tax authorities – between the constitutional principle of legalism and the principle of the protection of legitimate expectations

The article is devoted to revealing the concept and content of the principle of procedural economy as a component of civil justice. An analysis of national and European judicial practice in civil proceedings was carried out. The article examines and analyzes certain aspects of procedural economy in the civil process component, which is important for increasing the efficiency of the latter. Methods of abuse of procedural rights in civil proceedings are analyzed. Civilians consider the issue of including the principle of procedural economy as a separate provision to the civil procedure code controversial, however, the procedural law enshrines the elements of procedural economy in its prescriptions. Achieving a balance between the rational use of resources and making fair decisions is one of the main tasks of the judiciary. Ensuring the effectiveness of the principle of procedural economy is implemented in the interrelationship of saving time, actions and funds, which is inseparable, and the loss or reduction of the value of at least one of them will negatively affect the effectiveness of civil proceedings in general. It was determined that the consideration and resolution of the case conditions the means of ensuring the achievement of a law-enforceable result, which should be characterized by efficiency, which is reflected at the national level through the requirements of timeliness, impartiality and justice. The effectiveness of the principle of procedural economy and its material and legal value are highlighted. Excessive duration of civil cases can have negative consequences for both the participants in the process and the judges, as well as for society and the state as a whole. The speed of judicial proceedings is a necessary condition for achieving the objective truth. The court decision must correspond to the actual circumstances, and it is easier to establish them the less time has passed since their occurrence. In addition, the need to protect a person's right arises due to its violation, which puts it in a difficult position, leads to complications and further legal uncertainty. Attention is paid to the analysis of the essence of saving the process and methods of its implementation are determined. It is proposed to include the principle of procedural economy in the list of principles of civil justice at the level of legislative changes to the national legislation, which will definitely have a positive effect on the further development of the civil process.

This article examines the approach of legal science and law enforcement to the issue of abuse of rights. The authors emphasize that the reform of procedural legislation in the first two decades of the 21st century corresponds to the tendencies of internationalization of the civil process, within the framework of which the principle of accessibility of justice in its true understanding as a legal value is concretized. In this sense, the authors state that the abuse of the right to sue is one of the most important problems of civil procedural law, requiring a solution in order to increase the fairness and efficiency of national legal proceedings. The analysis of a passive procedural position is carried out in the path of abuse of law. The authors acknowledge that, in connection with the COVID-19 pandemic, the need to severely punish dishonesty of the parties in court in order to promote good faith in civil proceedings is a response to the established jurisprudence. In addition, this article draws attention to the fact that the most important problems today are related to the improvement of mechanisms for encouraging the execution of procedural laws and rules of civil proceedings, and not just the system of punishment for dishonest behavior. This formulation of the practical problem determines the research methodology. According to the authors, the solution of serious problems associated with the dishonesty of the parties should be based not only on a theoretical (and monistic) approach, but on a pluralistic and communicative approach. And in this sense, this study is new. This article concludes that the failure of the procedural theory in the study of the phenomenon of abuse of rights and the explanation of conscientiousness in the civil proceedings is a fact of scientific development, subject to methodological research — a methodological assessment of this fact; the question arises about the essence of the phenomenon; special purposes of civil procedure — the directions of development of procedural law inevitably give rise to their own legal interpretations, in particular, this is observed in the case of assessing the good faith in the judicial proceedings for purposes of other branches of law.

The article is devoted to the question of the genesis of electronic messages as evidence in civil proceedings, in particular, the historical and legal analysis of the introduction of electronic correspondence in the territory of Ukraine and their legal evolution from a means of communication to an independent means of proof. The article analyzes the concept of "electronic communication", a component of which is electronic correspondence. The main approaches to the interpretation of the concept of "electronic message" in regulatory and legal acts and scientific and technical literature were studied, the analysis of the distinction between the generalized concept of "electronic message" and "text, multimedia and voice messages", which is enshrined in the Civil Procedure Code of Ukraine, was carried out. The main features of an electronic message are highlighted: it contains information (certain information and/or data), has an electronic (digital) form, is transmitted using technical means of communication. The stages of the scientific and technical evolution of the Internet and mobile communications as the main channels of electronic communication are studied, and the statistics of their distribution in the world and Ukraine are given. The historical prerequisites for the emergence and development of the main environments for the functioning of electronic messages are characterized: sms-messages, e-mail, social networks and messengers. The evolution of scientific and legal positions regarding the use of electronic correspondence as an evidential basis in civil proceedings from the moment of its emergence as a method of communication to its legal consolidation as a means of proof was studied, in particular, the stages of adaptation of the legal framework and judicial practice in Ukraine were characterized. The current state and problems of using electronic messages as evidence in civil proceedings are characterized. The problematic aspect of using an electronic signature for recording electronic messages and the corresponding distinction between "electronic message" and "electronic document" were studied. The modern trends of changing the judicial paradigm to the principle of self-identification of the author, the presumption of integrity (authenticity) of the evidence, the use of the "letter in response" doctrine and the increase in the legal and evidentiary value of metadata, which will improve the dynamics of using electronic messages as evidence in civil proceedings, have been recorded.

In the Constitution of the Republic of Azerbaijan, ensuring the rights and freedoms of man and citizen, a decent standard of living for citizens of the Republic of Azerbaijan is called the highest goal of the state. The protection of human rights and freedoms proclaimed by the Constitution is considered the responsibility of the legislative, executive and judicial branches. The judicial form of protection of civil rights among the listed bodies is the most important. Judicial protection of human rights and freedoms is directly related to the violated right and, depending on many other factors, is carried out through constitutional, civil and criminal proceedings and other methods provided by law. Minors constitute a significant part of the population of the Republic of Azerbaijan (more than 30%) and the protection of their rights is a primary task of the state, society and family. Guarantees of judicial protection of the rights and interests of minors are enshrined both in the provisions of the Civil Procedure Code of the Republic of Azerbaijan and in the procedural norms of some substantive legislative acts (Family Code, Civil Code, Labor Code, etc.). It should be noted that although the European Convention on the Exercise of Children's Rights of 1996, which mainly regulates the civil procedural rights of minors, has not been ratified by the Milli Majlis of the Republic of Azerbaijan, the procedural rights of children in civil proceedings are sufficiently enshrined in the relevant national legislation. According to statistics from the Ministry of Justice of the Republic of Azerbaijan, the number of civil cases considered in courts affecting the rights and interests of minors is increasing from year to year. The vast majority of these cases are related to divorce, establishment of paternity or recognition of paternity in court, as well as adoption or cancellation of adoption. In this regard, the role of judicial bodies in ensuring the violated rights of minors, in regulating social conflicts and family disputes is extremely important. The article examines the constitutional and international legal foundations for the participation of minors in civil proceedings, as well as the mechanisms for their regulation provided for by the relevant legislative acts of the Republic of Azerbaijan. Key words: civil procedural law, family law, civil proceedings, divorce, minors, judicial protection, civil claim, rights of family members, former family member, juvenile justice, right of communication, parental rights.

The Problem of Derivation: Lawrence v. Texas and the Abuse of Social Facts

The scientific article presents a comparative legal analysis of the evidentiary activity of the court in civil and administrative proceedings. Theoretical approaches in the sciences of civil procedural law and the law of administrative proceedings regarding the definition of the concept of «evidence» are outlined.The circle of subjects of evidence in civil proceedings has been established, which include: participants in the case, procedural representatives and the court, whose functions in evidentiary activity are determined by the needs of justice. As a result of the analysis of the norms of the civil procedural law of Ukraine, a conclusion was made about the passive, as a rule, role of the court in the process of proof, in particular, in the part of collecting evidence in legal proceedings, which is determined by the operation of the principle of adversarial justice in civil proceedings. At the same time, it was emphasized that, in contrast to legal proceedings, when considering cases of a separate proceeding, the court is obliged to take measures to comprehensively, completely and objectively clarify the circumstances of the case, which indicates its «active position in clarifying the circumstances of the case.»Subjects of evidentiary activity in administrative proceedings include the court and persons interested in resolving the case (parties; third parties; representatives of the parties and third parties). Attention is focused on the active role of the court in the process of proof in administrative proceedings (in contrast to civil proceedings), which is determined by the principle of official investigation of all circumstances in the case, which is reflected in the provisions of the Code of Administrative Proceedings of Ukraine: «The court takes measures defined by law, necessary to find out all the circumstances in the case, including the discovery and demand of evidence on its own initiative» and «The court can collect evidence on its own initiative».

Based on the analysis of scientific sources, the article provides a comparative description of social and legal values, as well as reveals their role in the process of goal-setting norms of administrative law. It has been found that the subject of rule-making activity, proposing to establish one or another norm of administrative law, must clearly understand for the achievement of which goals he is enshrining it in the sources of legislation. In this case, social values, which are a kind of reference points for any goal-setting subject, help the subject of rule-making activity to orientate. It has been proven that there is an urgent need for a terminological distinction between the concepts of «value of law» and «legal values». The first concept considers law as a value, while the second one reveals the specifics of the impact of social values on the formation of legal norms, as well as the specifics of legal regulation and protection of social values. On the basis of this, the subject of the study devoted to the role of social values in the process of goal-setting of the norms of administrative law was specified, because then the subject of such a study covers a more general concept – «social values». On the one hand, it includes the concepts of «law as a value» and «legal values» in its content, and on the other hand, it allows specifying the concept of «values as guidelines for goal-setting norms of administrative law», narrowing the subject of such research to only those social values that are important for the process of forming the goals of the norms of administrative law. It was concluded that the peculiarity of the study, which is devoted to the role of social values in the process of goal-setting of legal norms, is that it covers the period when the legal norm has not yet been adopted, but the subject of norm-making activity is already determined with its goals (given the existing in society’s values) and ways of formulation in the sources of law. It was established that if the majority of scientists divide the world of values into legal and extralegal and, accordingly, work within the boundaries of the defined worlds – legal (theory of constitutional, administrative law, etc.) and extralegal (philosophy, sociology, psychology, etc.), then within the scope of research the goal-setting of the norms of administrative law is analyzed during the period when the rule of law has not yet been adopted, but legal processes are already taking place – the subject of goal-setting based on legal awareness and taking into account the scale of existing social and legal principles is determined with the goals of the future norm of administrative law.

Horizontal effect of fundamental rights – Legal principles – Dichotomy between private and public law – Systemic or anti-systemic elements in legal orders – Conflict between contractual autonomy and fundamental rights – Coherence in law – Balancing – Cases of permissibility of bank charges in the Czech and German legal systems – General clauses on good morals and good faith in private law

This paper analyses the legal qualification of deepfake in Polish civil law and its role in civil proceedings as a means of evidence. For this purpose, the provisions of civil law, procedural law and EU law were analysed in the context of acts on artificial intelligence and digital services introduced to protect against the use of artificial intelligence in an unethical manner. The paper uses a dogmatic-legal and analytical method, examining the doctrine and legislation on evidence, forms of legal acts and content generated by artificial intelligence. According to the results, deepfake can be treated as a document in substantive civil law, but in civil proceedings it constitutes a different means of evidence, which does not benefit from the presumptions provided for documentary evidence. In the authors’ opinion, EU regulations do not provide sufficient protection against its misuse in court proceedings; therefore, the proper application of the principles of free evaluation of evidence in Polish civil procedural law is key to preventing rulings based on deepfakes. Similarly, educating legal professionals on this issue will be crucial, as it will enable them to recognise the dangers and threats posed by deepfakes.

A deep social change, both directed on the democratic and on the autocratic political system, results not only in the changes of the normative regulations but also impacts the process of legal interpretation. Weakening the role of the language and systemic interpretative arguments, the change opens the interpretation on the stronger use of the axiological arguments, connected with the legal principles and criteria of general reference clauses. Particularly the last constructs, understood as the legislative authorization of the court to use the extra-legal criteria in the process of application of law, open the axiology of legal interpretation directly and largely, tying the character of this opening with the direction of change. The strengthening of the role of axiology deals as well with the widening of the base of the reference to these criteria (general clauses as the valid argument) as with the influence of these criteria on the process (shifting the axiological arguments to the role of the primary arguments) and the results (the correction of the stricti iuris contents by the social or political axiology) of the legal interpretation.

The paper deals with the comparative analysis of the concept of legal principles and general reference clauses. The legal principle is the intra-legal value, appearing in various ways in the legal order, with the fundamental set of principles formed directly in the normative acts. The general clause is presented in the paper as the reference to the extra-legal values, expressed in the legal text (by the name) but substantially left open. That empowers the court to define the name of the clause and to find its content, what means fulfilling the criterion with the axiology, balancing individual preferences of the court and socially determined values. Reconstruction of the principles and the clauses restricts the role of the linguistic rules of interpretation, strengthening the impact of axiologically involved systemic, teleological and functional rules.