Civil Cases Research Articles

The Application of the Legal Function of the State Attorney to Realize Legal Certainty in Civil and State Administrative Cases

The Application of the Legal Function of the State Attorney to Realize Legal Certainty in Civil and State Administrative Cases

The Emerging Civil Right to Counsel in India: On ‘Enforceable’ Directive Principles

Abstract This Article challenges one of the most robust commonplaces in the study of Indian Constitutional Law, viz. that Directive Principles of State Policy under Article IV cannot be enforced by the judiciary. Through a careful reading of the Constitution’s text and structure, as well as an investigation of relevant precedents within India, the United States, and other common-law jurisdictions, it argues: (1) Article 39A commands ‘the State’ to promote justice on the basis of equal opportunity, in particular through legal services enacted through legislation or other methods; (2) The judiciary is part of the State that Article 39A commands; (3) Courts, then, must use their powers to fulfill Article 39A even if that Article is not judicially enforceable; (4) The judiciary has authority over the maintenance and integrity of the legal system; (5) It also has its own authority to spend money to maintain and improve that system; and (6) it has the authority to allocate funds to pay lawyers and other legal personnel in civil cases if it believes that doing so will strengthen the legal system and fulfill its Article 39A mandate. The Constitution’s promise of the right to counsel in civil cases thus lies well within the judicial power to accomplish. The Article suggests areas where the judiciary should use this power, e.g., family law, housing, and the environment. It also raises important questions about the very nature of Directive Principles and the meaning of judicial ‘enforcement.’

«Проблемные ситуации»: апробация в качестве судебно-психиатрического метода исследования при изменении гражданско-правового статуса

<p style="text-align: justify;">As part of solving the task of developing methods to improve the quality and evidence of forensic psychiatric decisions, in a comparative non-randomized study the “Problem Situations” methodology was tested as a method of forensic psychiatric assessment in civil cases on applications for change civil legal status. The sample consisted of 67 subjects who underwent inpatient forensic psychiatric examination in connection with the decision on the issue of changing their civil status in 2021—2022. A conclusion corresponding to legal capacity was given in relation to 12 people; diminished legal capacity - 24 people; incapacity — 31 people. Pairwise group comparisons using Pearson’s goodness-of-fit test (Chi-square) and biclustering procedures confirmed the predictive validity of the method.</p>

Kewenangan Jaksa Pengacara Negara Mewakili BUMN Sebagai Pihak Termohon Dalam Suatu Permohonan Kepailitan Dan PKPU

State-Owned Enterprises (BUMN) are one of the actors in economic activities in the national economy which have an important role in realizing the welfare and prosperity of society. In the case of bankruptcy and postponement of debt payment obligations applications, the Prosecutor's Office has the authority to file a bankruptcy application against the debtor on the basis of public interest. On the other hand, the Prosecutor's Office can also act as a state attorney who has the authority to represent the state or state agency in a case. From the research results, it can be concluded that the authority of the State Attorney to represent the state/state agencies in commercial cases is different from civil cases in general as regulated by Law No. 37 of 2004 concerning Bankruptcy and postponement of debt payment obligations.

General jurisdiction of courts to resolve cases resulting from legal labor relations

This article analyzes the regulations regarding the general competence of the courts to resolve labor disputes. The way of delimiting the powers of the courts from other jurisdictional bodies when solving these civil cases was highlighted. In particular, these regulations were researched both for the examination of individual labor disputes and for the resolution of collective labor conflicts. The problem existing in the judicial practice regarding the delimitation of the powers of the jurisdictional bodies in the settlement of civil cases resulting from legal employment relations was highlighted. In order to improve the regulations in this field, proposals were submitted to supplement and modify the legislative framework.

A LEGAL OVERVIEW OF MEDIATION PROCEDURES IN FORMER YUGOSLAVIAN COUNTRIES (R. CROATIA, R. SLOVENIA, AND R. SERBIA)

Mediation is a mechanism known for its efficiency, economy, and flexibility, characteristics that enable the constructive resolution of a dispute between parties. This method offers an extended range of contributions, especially regarding its influence on the state itself and on that state’s citizens. The successful practice of legal mediation seen in different states, starting from the USA, known for resolving 90% of its civil cases through this extrajudicial method. Afterward, the rest of the world began introducing this legal tool into their national legislations. Establishing mediation in countries’ legal systems are also been conditioned by the need to make a country’s laws and legal standards compatible and in harmony with those of the European Union. This, in addition to the goals desired to achieve with this action, namely reducing the number of unresolved cases in court, reducing procedural costs and duration, and increasing the quality of dispute resolution and parties’ involvement in the dispute resolution process, resulted in judicial involvement regarding contemporary reforms and in particular increasing citizens’ trust in the judiciary. This process started at the same time for a considerable number of Balkan states, whose main aim was integration and membership in the European Union. The paper will focus on a legal analysis of the mediation procedure through the method of content analysis for the laws of a selected number of states in the region (i.e., Republic of Croatia, Republic of Slovenia, Republic of Serbia), as well on finding the similarities and differences for several elements of this procedure in these states compared to those in the Republic of North Macedonia.

Binding Interpretation of Law in Ethiopia: Observations in Federal Supreme Court Cassation Decisions

The Federal Supreme Court Cassation Division reviews cases based on cassation petition against final court decisions when they contain a fundamental error of law. Such decisions of the Cassation Division rendered by five judges are binding on lower courts. This article reviews cassation decisions for content and form under six categories. It also reviews how the Cassation Court sees its role to better contextualise the effectiveness of those decisions. It finds that the Cassation Division sees itself as part of a court, not an independent judiciary based on separation of powers, and its decisions show significant deference to administrative decisions, and heavy-handed interpretation and application of the rules of criminal and administrative laws. In civil cases, it shows strict interpretation of statutes; it does not resort to principle-based interpretation of rules; it rather interprets statutes as any other ordinary court does. Even if continental legal systems do not envisage case laws through their judicial decisions, courts are not expected to merely rely on the literal readings of the law where such readings are silent, absurd, unreasonable, inconsistent, and contrary to legislative intent. With regard to the form the judgments are written, there are decisions that are not befitting a Cassation Division, the highest judicial organ in Ethiopia.

Effectiveness of Legal Aid Services in Joint Property Cases in Marriage at Partner Legal Aid Institutions Madani West Sulawesi

This study aims to analyze the problem of free legal aid for the weak and poor. This provision is regulated in the Legal Aid Law, which is the embodiment of Article 27 paragraph (1) and article 28D paragraph (1) which shows that everyone has an equal position before the law and is entitled to legal protection. The state has juridically arranged in such a way, so that justice can be felt by all levels of society, but the application of the law is still far from justice itself. This research is empirical legal research using a sociological juridical approach, which is an approach that emphasizes research that aims to obtain legal knowledge empirically. The results showed that LBH Mitra Madani as a structural institution, has provided legal assistance in litigation and non-litigation. In addition, LBH Mitra Madani also conducts legal counseling, community organizing, and training in the field of law. However, the obstacle is the absence of financial support from the government, because LBH Mitra Madani has not been accredited. The cases that have been accompanied from 2019 to 2022 amounted to 37 cases, where the cases handled by LBH Mitra Madani were dominated by civil cases. The obstacles of LBH Mitra Madani in providing legal assistance are legal substance and legal structure. By regulation, legal assistance provided by LBH Mitra Madani to the poor should be free. However, in fact, LBH Mitra Madani still collects fees from every client who is given legal assistance, this is because LBH Mitra Madani has not received financial assistance from the Government. In addition to substantial factors that are obstacles to the effectiveness of LBH Mitra Madani in providing legal assistance are legal structure factors, which include law enforcement institutions (police, prosecutors, courts and advocates).

OUT-OF-COURT AND JUDICIAL DISPUTE SETTLEMENT PROCEDURES IN KAZAKHSTAN

The article discusses the extrajudicial and pre-trial procedure for resolving disputes in the Republic of Kazakhstan, provided for by law, agreement and judicial practice. The advantages of resolving disputes out of court and before trial are noted, which are reflected in qualitative and quantitative characteristics at the level of the legal culture of the population and the regulatory burden of the courts. Among the problems of the theory and practice of dispute resolution, the authors indicate the lack of clear criteria and limits for the settlement of disputes in extrajudicial and pre-trial procedures. To solve this problem, the authors make a distinction between extrajudicial, pre-trial and judicial procedures for resolving disputes. Attention is paid to the ambiguous understanding of the extrajudicial and pre-trial procedure for resolving disputes in legislation, theory, and judicial practice. Therefore, the authors generally recognize dispute resolution in one form or another as alternative to judicial procedure as methods of resolving disputes, as well as as extrajudicial and pre-trial forms of protection of rights, freedoms and legitimate interests. The norms of the legislation of the Republic of Kazakhstan regulating the extrajudicial and pre-trial procedure for resolving disputes, scientific works of Kazakh and foreign authors, methodological recommendations of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Kazakhstan, pilot projects of the Supreme Court of the Republic of Kazakhstan and judicial practice on pre-trial settlement of disputes were studied. At the end of the work, it was concluded that the out-of-court procedure for resolving disputes mostly includes arbitration and the notary, and the pre-trial procedure with a conditional share includes external administrative procedures, mediation procedures and participatory procedures. In general, they are alternative methods of resolving disputes, differing in the purposes for which they are carried out, as well as the subjects who carry them out.

Prospects for the use of artificial intelligence in civil justice

The article discusses the general prospects for the use of artificial intelligence technology in civil proceedings as a main and auxiliary tool at the current stage of the development of this technology. The main approaches to defining the concept of artificial intelligence were studied and its classification into weak, strong and superintelligence was characterized. It is emphasized that justice is usually administered by professional judges, as high demands are placed on their legal knowledge and life experience. It is argued that equal replacement of a judge in civil proceedings with artificial intelligence technology is currently impossible. The reasons for the impossibility of such a replacement are analyzed, namely the complexity and multifacetedness of controversial private-law relations, the impossibility of taking into account moral and ethical aspects, the need for flexibility in decision-making, the problem of the nature of the initial algorithms of artificial intelligence, the transparency (motivation) of decisions, the problem of determining the guilty party in court cases errors, data protection issue. It is noted that these reasons have a technological and legal basis. A critical assessment of the state’s conceptual approaches to the development of artificial intelligence in the field of justice is provided. The directions of the auxiliary application of artificial intelligence technologies in civil proceedings, which are reduced to the automation of routine tasks, processing and analysis of large volumes of data and evidence, and increasing the accessibility of justice, are considered. It has been proven that the use of artificial intelligence technology provides better opportunities for the participants in the judicial process to realize their rights and obligations, including the processing of large amounts of information. The importance of ensuring a high level of information protection when using artificial intelligence during the administration of justice in civil cases is emphasized. The need for regulatory regulation of the use of artificial intelligence technology in civil proceedings in combination with other spheres of public administration and branches of law is substantiated. It is indicated that the wider application of artificial intelligence in civil proceedings will require new technological solutions and revision of the legal foundations of the judicial branch of government.

General characteristics of the contents of the stage of opening action proceedings in a civil proceeding

The article examines the general features of the content of the stage of opening a lawsuit in a civil process. Based on the analysis of the existing concepts of the nature of the civil process, the author concludes that the content of the procedural stages is formed by the procedural activity. The stages of the civil process show the development of the civil case in dynamics. The «source» of such dynamics is procedural behavior. With the help of this behavior, the rights, obligations and powers are realized, which ensures the movement of a civil case from the first to the last stage. In particular, at the stage of opening a lawsuit, its content covers the procedural activities of the court and the plaintiff (the person bringing the lawsuit).
 The author examines the general features of the content of the stage of opening a lawsuit in a civil process. It is claimed that the multiplicity of procedural actions is a characteristic feature of all procedural stages in the civil process. However, the peculiarity of the stage of opening a lawsuit is the small number of procedural actions that shape its content. This is due to the limited number of subjects of civil procedural relations who participate in this stage, as well as the goal and tasks, the implementation of which is aimed at the procedural behavior of the court and the plaintiff (the person who brings the lawsuit).
 It is indicated that all procedural actions at the stage of opening a lawsuit are accompanied by the preparation of procedural documents, which serve as written evidence of their execution. No other fixation, in particular a technical one, is provided for at this stage, which gives grounds to draw a conclusion about the implementation of written proceedings at the first stage of consideration of a civil case of a claim nature.
 The temporality of procedural actions at the stage of opening a lawsuit is analyzed, it is pointed out that they are regulated not only by procedural, but also by material legislation. The ratio between the procedural terms and the statute of limitations is drawn, where a conclusion is made that it is impossible to consider the statute of limitations as a procedural term.
 The object of procedural activity at the stage of opening a lawsuit and the peculiarity of the action at this stage of the principles of civil procedure are noted.

Оn the question of protection of property rights and determination of subjects of property use: analysis of judicial practice

The article highlights the method of protecting the right of ownership and determining the subjects of use on the example of the analysis of judicial practice. The interrelationship of the right of ownership and the right of use, the order of following the main thing and the accessory thing are determined. Examples of a court case in terms of the court’s determination of the right of ownership and subjects of the right of use are given. The issue of property rights is analyzed in the context of a key aspect of social relations between subjects of civil law. The provision that the state’s attitude to the issue of property rights determines the features of the ruling regime in the country and testifies to the development of civil society has been updated. The inviolability of the right to property and the level of its protection is a kind of litmus test that determines the level of democratic society and the state’s attitude to basic human and citizen rights. Thus, Part 1 of Article 4 of the Civil Code of Ukraine stipulates that every person has the right, in accordance with the procedure established by this Code, to apply to the court for the protection of his violated, unrecognized or disputed rights, freedoms or legitimate interests. According to Part 1 of Article 16 of the Civil Code of Ukraine, every person has the right to apply to the court for the protection of his personal non-property or property right and interest. According to Article 41 of the Constitution of Ukraine, everyone has the right, in particular, to own, use and dispose of their property; the right to private property is acquired in accordance with the procedure established by law; no one can be unlawfully deprived of the right to property, the right to private property is inviolable (parts one, two, four). Analysis of court practice shows that consideration and resolution of civil cases in the field of violation of property rights is complicated by the imperfection of the legal system, the need to improve and change the existing legislation in this field. It was determined that mostly people go to court due to violations related to the lack of registration of ownership rights to real estate, loss of title documents, receipt of title documents by improper entities, presence of self-acting objects in real estate.

Dehybridization of the General Competence of the Jurisdictional Bodies

In this article, I have analyzed the criteria for delimiting the powers of jurisdictional bodies in the settlement of civil cases, which I have argued are also criteria that prevent the hybridization of these attributions. We presented the danger of the phenomenon of hybridization for the normal functioning of judicial bodies and gave solutions to minimize it in the legislative system. We analyzed the hybridization within the regulations on general jurisdiction, which delimit the powers of several jurisdictional bodies, such as: courts of law, arbitration, the Constitutional Court and others. The legal normative basis is the legislation of the Republic of Moldova. In order to highlight the practical issues, the judicial and constitutional practice of the Republic of Moldova was analyzed. The methodology applied in the development of this article was comparison and analysis. In order to formulate fundamentally multifaceted opinions, we started from the French, Moldavian and Russian doctrine. In some of these sources, certain ideas regarding the dehybridization of powers of jurisdiction are developed, and we have supplemented them. Finally, a synthesis was made starting from all the criteria for dehybridization of the powers of jurisdictional bodies.

Insanity Defence Under the Indian Criminal justice System

The "Insanity Defence" within the framework of the Indian Legal System serves as a protective measure for individuals accused of criminal offenses, especially when they lack the mental capacity to understand the nature of their actions or differentiate between right and wrong. This defence aligns with the legal principle “Actus non facit reum nisi mens sit rea,” which emphasizes that for an action to be deemed unlawful, it must be accompanied by a guilty mind. Consequently, punishing individuals who are not accountable for their actions would contravene fundamental human rights enshrined in the Constitution of India. To delve deeper into the concept of the insanity defence, it's essential to trace its origins and development within English law and its subsequent impact on Indian legal statutes. It's crucial to understand that insanity defence isn't merely a matter of suffering from a mental illness; rather, it requires a demonstration that the accused lacked the mental capacity to comprehend the consequences of their actions. Thus, the burden of proof lies with the accused, who must provide compelling evidence to establish their state of insanity, akin to the standard of “preponderance of the evidence” often seen in civil cases. This paper seeks to analyze the intricacies of insanity within the legal framework and how it has evolved into a potential loophole within the current judicial system.

Judicial Constructions of Harm in Australian Image-Based Sexual Abuse Case Law: A Feminist Discourse Analysis

Despite almost every Australian state and territory criminalizing image-based sexual abuse (IBSA), which includes the non-consensual taking, creating, or sharing of intimate images, judicial discourse in this context remains underexplored. In this article, using feminist critical discourse analysis, we investigate how Australian courts conceptualize the harms of IBSA in 47 criminal and civil cases. We find that while the serious harms suffered by individual victim-survivors are widely recognized, judicial discourse on societal harms is limited, with little to no recognition of IBSA as a form of gender-based violence (GBV) in and of itself. This is significant for several reasons, including the overrepresentation of women victim-survivors and male perpetrators in our dataset, and the gender and other inequalities that often underpin IBSA. We argue that by adopting an inclusive gender-based approach, the courts can promote more nuanced, relational, and holistic understandings of the individual and societal harms of IBSA, knowledge of which is important for addressing this rapidly growing form of GBV in Australia and internationally.

The institute of small cases in the civil procedure of Ukraine as an obstacle for the effective principles of the rule of law and the accessibility of justice

The article is devoted to the analysis of the institute of civil procedural law — «minor cases». The purpose of the article is to find out whether this institution of civil procedural law an obstacle in the implementation of the principles of the rule of law and access to justice. In the course of the study, the practice of the ECtHR, the provisions of the domestic legislation of Ukraine and the acts of interpretation of the Constitutional Court of Ukraine were analysed. This made it possible to illustrate the lack of unity in understanding not only the essence of the principle of the rule of law, but also the content of the legal category «minor cases». The criteria for assigning civil cases to the «insignificant» category were analysed; it is determined that the procedural law identifies three criteria for classifying a case as insignificant: 1) a direct indication in the law (regardless of the price of the claim); 2) the marginal indicator of the price of the claim; 3) judicial discretion, taking into account the price of the claim. When analysing these criteria, a comparative legal characterization of the size of the living wage for able-bodied persons in relation to the size of the minimum wage was carried out. Along with the analysis of the practice of the ECtHR, this gave grounds for the conclusion that the establishment of the limitation of the right to cassation appeal of minor cases (with the exception of some exceptions) generally corresponds to international standards of judicial development and European recommendations on the introduction and improvement of the functioning of systems and procedures of appeal in civil and economic affairs. At the same time, it was established that clauses 1 and 5, part 6 of Art. 19 of the Code of Civil Procedure of Ukraine by the civil procedural legislation, the limit indicators of the price of the claim (one hundred and two hundred and fifty amounts of the subsistence minimum for able-bodied persons) violate a reasonable balance between the interests of the state (regarding the relief of the courts and the improvement of the functioning of systems and procedures of appeal in civil cases) and the needs of the protection of fundamental rights person, taking into account the property status of the main social and demographic groups of the population of Ukraine. And such a restriction is not compatible with the clause of Art. 6 of the European Conference, as there is no reasonable relationship of proportionality between the means used and the goal they are trying to achieve. Therefore, it is proposed to revise the marginal indicators of the price of the claim and the definition of its relevant indicator for the qualification of cases as insignificant.

The Institution of Special Court Rulings in Civil Procedure: Problems of Application

The institution of a special court ruling is one of the procedural tools that ensures that courts of general jurisdiction, when considering cases in civil proceedings, strengthen the rule of law and prevent offenses. Special court rulings have a long history of development: they have gone from a mandatory form of procedural reaction of the court to detected violations of the rule of law or the rules of the socialist community to a response measure of the court to cases of violations of the rule of law attributed to its discretionary powers. At the same time, with the adoption of the Civil Procedure Code of the Russian Federation, the importance and effectiveness of the institution of a special court ruling have significantly decreased. Judicial statistics indicate that there is a long-term and gradually developing trend towards a decrease in the number of private rulings issued by courts of general jurisdiction in civil cases. This situation is caused by fragmented and incomplete legal regulation, its ambiguous interpretation, diversely developing judicial practice and the lack of clarification of the resolution of the Plenum of the Supreme Court of the Russian Federation on the practice of applying the institute of a special court ruling. In addition, the procedure for monitoring the enforcement of special court rulings by authorized persons in terms of informing them to the court about the measures taken to eliminate and prevent further violations of the rule of law goes beyond the function of the court to administer justice and imposes on the court the duties inherent in control (supervisory) bodies. The above circumstances raise questions about the necessity and expediency of having the institution of special court rulings in civil proceedings in its current form, as well as about the prospects for its further improvement.

Divorce Due To Apostasy (Study of Differing Decisions in Religious Courts)

The case of divorce due to apostasy is a civil case that is not directly regulated in Indonesian legislation. Therefore, there are differing decisions in cases of divorce due to apostasy. In the divorce case No. 0333/pdt.G/2013/PA.Bdw, with the reason of the husband's apostasy, the court issued a decision of talak bain sughra, while in the divorce case No. 3/pdt.G/2019/PA.Bky, with the same reason, the court issued a decision of fasakh. The research method used is a normative method with a statutory approach. The researcher employs descriptive analysis in discussing relevant theoretical studies related to divorce due to apostasy. The findings of this research are: 1) the legal considerations of the judges in the cases No. 0333/pdt.G/2013/PA.Bdw and No. 3/pdt.G/2019/PA.Bky were not appropriate and should have referred to KHI article 116 letter k. 2) the judges' decisions in the cases No. 0333/pdt.G/2013/PA.Bdw and No. 3/pdt.G/2019/PA.Bky were in accordance with the maqasid shariah in terms of preserving religion because both decisions terminated the marriage bond, either through talak bain sughra or through fasakh.

Penerapan Asas Nebis In Idem Dalam Penyelesaian Sengketa Lingkungan Melalui Gugatan Perwakilan Kelompok Class Action

This study examines the theoretical basis of the Nebis In Idem principle in civil cases, especially in class actions and how the basis for the Judges' consideration in applying the Nebis In Idem principle in Class Action Decisions, where the method of approach used in this scientific work is normative juridical, namely research that analyzes laws and regulations with literature studies. Using primary source study materials in the form of regulations, while secondary legal materials include books, articles from accredited journals, besides that tertiary legal materials consist of legal dictionaries. This journal begins with a formulation of the meaning of the application of the Nebis In Idem principle. Then describes descriptively the relationship between Article 10 of PERMA No. 1 of 2002 concerning Class Action Procedures with Article 1917 of the Civil Code. It can be concluded that the theoretical basis of this principle is solely to provide legal protection for a person's human rights, so that a person is not tried for the same case and prioritizes legal certainty and does not let the government repeatedly talk about the same event.

TINJAUAN HUKUM ISLAM TERHADAP PERMOHONAN DISPENSASI NIKAH PADA PENGADILAN AGAMA PALOPO

Marriage dispensation is an exception to the rule or law that is given to the applicant to get married. In this study, the author examines the determination of a marriage dispensation application in a civil case Number: 45/Pdt.P/2022/Pa.Plp. The focus of the research problem formulation is the basis for the judge's consideration in granting the request for a marriage dispensation in a civil case Number: 45/Pdt.P/2022/PA.Plp. Then, what is the review of Islamic law regarding requests for marriage dispensation in civil cases Number: 45/Pdt.P/2022/Pa.PlpType of research is library research with a normative juridical approach. Juridical legal research means research that refers to existing literature studies or to the secondary data used. While normative in nature means legal research that aims to obtain normative knowledge about the relationship between one regulation and another. The data material analysis method uses a qualitative method which is presented prescriptively.The results of this study indicate that the basis for the judge's consideration in granting the request for marriage dispensation is that there is an urgent reason, because she is already pregnant. Low education so there is no study and work activities because of the weak economy, and the prospective bride and groom are ready physically and mentally. The judge's legal considerations in granting a marriage dispensation are that there is article 7 paragraph 2 of Law No. 1 of 1974 concerning marriage, in the case of deviations from the marriage age limit, you can ask for dispensation from the court or other officials appointed by both the male and female parents. woman. the judge's consideration outside the law uses the concept of maslahah mursalah because the provisions on age restrictions and marriage dispensation are not explained in the text, but the content of maslahat is in line with syara' actions that want to bring benefit to the applicant (both bride and groom and their families) because there is an urgent matter, namely pregnancy formerly. Then in terms of trying children related to marriage dispensation based on Supreme Court Regulation number 5 of 2019 concerning Guidelines for adjudicating applications for marriage dispensation.