Civil Courts Research Articles

Informed Consent: Legal Obligation or Cornerstone of the Care Relationship?

The topic of informed consent has become increasingly important in recent decades, both in the ethical-deontological field and as a duty of law. The review covered all sentences issued by the 13th section of the Civil Court of Rome during the period January 2016-December 2020. During this period, 156 judgments were found in which a breach of consent was required; in 24 of these, specific liability was proven, and the corresponding compensation liquidated. Moreover, 80% of the cases concerned the lack of information provided. The most involved branches were those related to surgical areas: general surgery, plastic surgery and aesthetic medicine and orthopaedics. The total amount of compensation paid was EUR 287,144.59. The research carried out has highlighted how, in a broad jurisprudential context, the damage caused by the violation of the right related to informed consent is considered, and how it impacts on the economic compensation of damages. Additionally, it showed that the areas most affected by the information deficit are those related to the performance of surgical activities, which are characterized by greater invasiveness and a higher risk of adverse events. The data reported underline the exigency to consider informed consent not as a mere documentary allegation but as an essential moment in the construction of a valid therapeutic alliance, which is also useful for avoiding unnecessary litigation that is becoming increasingly burdensome for healthcare systems all over the world.

Use of rain water in floor washing and garden irrigation: a case study

The socioeconomic context brought by the COVID-19 pandemic and the war in Ukraine, caused a crisis in the world economy. Faced with this situation of inflation and the rise of the dollar, access to basic items such as water and cooking gas has become an obstacle for the needy population. There are alternatives to overcome water scarcity, and one of them is the use of water harvesting systems with low-cost technologies, which facilitate replication in environments that do not have a water distribution network, allowing the economically disadvantaged population access the water. This work analyzes the use of rainwater in garden irrigation and floor washing in a public building. The case study was carried out at the Civil Court and Consumer Relations Court in Camaragibe, PE. The rainfall index and the history of water consumption were analyzed, as well as the analysis of rainwater in the study region. Reservoir simulations and economic analysis were performed using the NETUNO software. The economic simulation resulted in the value of R$3,000.00 (three thousand reais), and a payback time of 5 years. After analyzing the simulations and the results of the rainwater samples, as well as complying with the requirements of the ABNT 15527/2019 standard, it can be inferred that the implementation of rainwater harvesting for non-potable use is feasible.Keywords: Harvesting rainwater. Sustainability. Low cost technology.

Analysis of the current situation on the Russian shipbuilding market in the context of sustainable development of the transport system

Shipbuilding is one of the most complex and labor-intensive branches of heavy industry in Russia. The shipbuilding market is characterized by features that relate to analysis, assessment of the current state, and forecasting. The work focuses on civil courts. First, the life cycle of shipbuilding products is longer than in other industries. From the moment of the development of the technical assignment to the beginning of the operation of the vessel, it takes from 3 to 10 years. At the same time, the transition from one stage to another - for example, from design to construction, can take years. As a result, it becomes almost impossible to analyze the entire life cycle of each vessel project. Secondly, the efficiency of the shipbuilding market is assessed not only by the number of ships delivered, but also by their cargo capacity - tonnage. Therefore, sea-going ships are characterized by large coefficients of completeness. However, for use on inland waterways, priority is given to the multifunctionality of the project. Thirdly, the shipbuilding industry is extremely poorly automated, which leads to the impossibility of using modern methods of assessing the shipbuilding market (there is not enough necessary information). Importantly, the shipbuilding industry in Russia limits its development by secrecy of large amounts of data.

Obavezujuće dejstvo pojedinačnih pravnih akata - dejstvo presude krivičnog suda u pravnom poretku

The unity of the legal order is the foundation of the rule of law. It also implies the internal harmony of decision-making, ie. the absence of contradictory court decisions in the unified legal system. In order to realize this ideal, it is necessary for the legal system to foresee that legally binding and final individual legal acts mutually bind state bodies. The unity of the legal system can be only achieved when the system provides that conviction judgment rendered by a criminal court bind civil court in the subsequent civil proceedings. Civil courts should be also bound by a decision rendered by a criminal court if the defendant is acquitted of the charge, in case criminal court has solved some preliminary question that is important for deciding in civil proceedings. Such a system exists in Austria and Serbia. In principle, a verdict rendered by a criminal court should produce effects erga omnes. On the other hand, in Germany and Anglo-Saxon legal systems, the principle of independence of criminal and civil justice applies. However, the difference between the previous and the latter system is not as significant as it seems at first glance, because the judgment of the criminal court in civil proceedings has a significant probative value. From the point of view of the Constitution of Serbia, as well as the European Convention on Human Rights and Fundamental Freedoms, the principles of independence of the courts in making decisions, the requirement that a court must only be bound by the Constitution and the law are not an obstacle for the legislator to determine that the final judgment of the criminal court binds the civil court. The principle of res judicata, which forms one of the foundations of the rule of law, is much broader in Anglo-Saxon than in Euro-continental law. This particularly applies to the application of the institute issue or collateral estoppel which derives from the Roman principle of venire contra factum proprium. The principle serves to prevent substantial injustice. The principle of the rule of law requires legal certainty and predictability which implies the absence of contradictory court decisions in a unified legal system. In order to avoid the possibility of making contradictory court decisions, it is necessary to reexamine the ambit of the res judicata principle and to extend the application of the principle of venire contra factum proprium and preclusion in order to achieve procedural fairness.

Justice or Just Us? Social Death, Gang Injunctions, and the Creation of a Modern American Apartheid State

This article will discuss the practice of civil gang injunctions in Southern California, its history, and civil court procedures. It explores the gang abatement method's unconstitutionality through the lens of the First and Fourteenth Amendments of the United States Constitution, critiquing the unequal treatment of people of color in the justice system. Through philosophical theories of language and authoritarian control, the article will go on to discuss how a supposedly egalitarian nation like the United States could support and continue the utilization of such a harmful tactic. Finally, the article will contextualize gang injunctions with the South African practice of apartheid and argue that it fits the classification of an apartheid policy under the definitions of the international court and other international treaties.

A separate decision in the civil court of Ukraine

A separate decision in the civil court of Ukraine

Rent Deposit Requirements: A Civil Court Poll Tax

Rent Deposit Requirements: A Civil Court Poll Tax

The Right to a Fair Trial and Interstate Collaboration on Execution of Civil Court Decisions: a Particular View on the Collaboration between Albania and Greece

The Right to a Fair Trial and Interstate Collaboration on Execution of Civil Court Decisions: a Particular View on the Collaboration between Albania and Greece

Reviving the Inert: Deciphering Order 58 Rule 3(2) Of the High Court Civil Procedure Rules, 2004 (C.I. 47) Through the Lens of Springfield Energy Ghana Ltd. v. Bulk Oil Storage and Transportation Company Limited

Reviving the Inert: Deciphering Order 58 Rule 3(2) Of the High Court Civil Procedure Rules, 2004 (C.I. 47) Through the Lens of Springfield Energy Ghana Ltd. v. Bulk Oil Storage and Transportation Company Limited

Judicial discretion in administrative jurisdiction: concept and content

The article is devoted to the issue of the concept and content of judicial discretion in administrative proceedings. The article examines theoretical approaches to the definition of the concept of judicial discretion, highlights the peculiarities of procedural legislation and judicial practice, which provide for the limits and criteria of judicial discretion. It is concluded that judicial discretion in administrative proceedings allows, despite its ambiguous understanding and interpretation, to single out certain features of this phenomenon. The exercise of discretionary powers by the administrative court determines the formation of judicial practice in the consideration and resolution of certain categories of administrative cases, as a result of which complex and ambiguous public legal disputes are resolved immediately, without waiting for the improvement of legal regulations. The article draws attention to the fact that administrative courts are called upon to resolve public-law disputes, to promote the restoration of violated rights, freedoms and interests in the field of public-law relations, to restore law and order in the public sphere. Therefore, any administrative decision regarding a person made by a subject of authority, regardless of the method of adoption, level and place of the body in the relevant system, legal grounds, motives, method and forms of adoption, is subject to judicial control. Attention is drawn to the fact that exercising judicial discretion, the judge, guided by the principles of the rule of law, can depart from purely normative and legal regulation and decide the case on the basis of the principles of law. It is proposed that judicial discretion should be understood as the authority of the court in choosing decision options, governed by the rules of the Civil Court of Ukraine, guided by the rule of law and the circumstances of the case in order to render a legal and justified decision in the case. At the same time, judicial discretion gives the court the right to choose, while the court must make a decision, which should be based on the principles of administrative justice as much as possible and correspond to the individual features of a specific administrative case. It is justified that further scientific research of judicial discretion will make it possible to improve the state of administrative proceedings, to provide practical recommendations to courts, aimed at improving the latter's exercise of discretionary powers.

Някои въпроси относно произнасянето на първоинстанционния съд по гражданския иск при прекратяване на наказателното производство поради погасяване на наказателната отговорност (размисли по повод т. р. № 1 – 2013 – ОСНК)

Interpretative Decision No. 1/2013 of the Criminal College of the Supreme Court of Cassation stipulates that “… the court shall render a decision on the civil claim, accepted for joint consideration within the penal procedure, when, in the course of the first instance proceedings, before the verdict is pronounced, any of the grounds under Art. 79(1) of the Bulgarian Criminal Code occurs (death of the perpetrator, expiration of the term of limitation, amnesty)”. This decision of the Criminal College raises complex theoretical and practical questions related to the rules for hearing the civil claim, considering the criminal nature of the proceedings, the functions of the parties, the participation of the perpetrator’s inheritors (where the perpetrator has died), how their rights and legitimate interests will be guaranteed, and other questions that the Interpretative Decision failed to answer. Following an analysis of the established problems, a proposal for their solution is made through official referral of the civil claim to the civil court as to continue the court proceedings after the criminal case has been discontinued.

Revision of court decisions based on newly discovered circumstances in civil proceedings in the practice of the Supreme Court

The article deals with the institute of review of judicial decisions under newly discovered circumstances in the practice of the Supreme Court. The review of judicial decisions on newly discovered circumstances must comply with the international standards of fair trial enshrined in para 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights, according to which the specified type of review is characterized as extraordinary and should comply the principle of res judicata.
 The practice of the Civil Court of Cassation and the Grand Chamber of the Supreme Court raises a number of problematic issues related to the application of the updated provisions of the civil procedure legislation concerning the review of judgments on newly discovered circumstances following the amendments to the Civil Procedure Code of Ukraine in 2017. Such problematic issues include peculiarities of interpretation of the notion of newly discovered circumstances, persons, entitled to apply to a court with an application for revision of court decisions under newly discovered circumstances, determination of an appropriate court, where an application should be filed, court powers based on the results of consideration of relevant applications and peculiarities of their consideration. The author concludes that it is necessary to expand the interpretation of the concept of the ‘participants of the case’ as the persons, who can filed an application to the court for revision of judicial decisions on newly discovered circumstances. Besides, the legal problem connected with different interpretation of powers of the court of cassation on reconsideration of judicial decisions in the mentioned category of cases, arisen in practice of the Civil Court of Cassation and the Economic Court of Cassation within the structure of the Supreme Court, was analyzed. The author's position is that the Civil Court of Cassation is not entitled to consider the application on review of court decisions on the newly discovered circumstances on the merits as a result of the retrial of the judgment of the lower courts, because only the court, which delivered the first judgment is empowered to do so.

Guarantees in the Use of Telecommunications Technology in Litigation before UAE Civil Courts and Its Compliance with International Standards

In 2005, the United Arab Emirates (UAE) legislature authorized the use of telecommunications technology into the delivery of government services. Such use was extended to the judiciary in (i) 2017 in amendments to the Civil Procedures Law, (ii) 2018 by issuing the Civil Procedure Regulation, and (iii) 2019 by a Ministerial Decision regulating its use. Deployment of this technology has guaranteed the fulfilment of swift justice in the UAE’s courts through the advantages of simplicity, swiftness, low cost, equality between the litigants. In addition, it supports the State’s policy of implementing modern technologies to more efficiently process everyday transactions. However, major questions remain about the guarantees offered to litigants when using this system, whether these guarantees actually improve traditional (i.e. non-electronic) litigation process, and the extent to which these guarantees comply with international standards related to principles and rules of litigation. The paper argues that the recent legislative amendments provide similar and more advanced guarantees for remote litigation, such as the lack of objections by litigants; records of remote litigation being confidential and protected; information security policies; the principles of publicity and confrontation between the litigants being fulfilled; and, the right of defence being guaranteed. In the conclusion, the paper suggests additional amendments to UAE law so that litigation guarantees are fully assured when using technology in litigation before the civil courts.

The Lawyer- Client Relationship: Part Three: Fee Arbitration

This article discusses issues relating to a conflict between a lawyer and his or her client concerning legal fees. The article is Part III in a series considering issues that arise during the course of the lawyer-client relationship. The authors argue that the Mandatory Fee Arbitration Act of 1977, enacted in the State of California, should serve as a model for all states in order to resolve such conflicts extrajudicially—outside of the normal legal process of filing a lawsuit in a civil court of competent jurisdiction over such matters. The Mandatory Fee Arbitration system, abbreviated MFA, is an important “risk management” tool in jurisdictions that adopt this approach. Unless otherwise noted, this article is based on an analysis of the California Act, pursuant to the provisions of California Business and Professions Code (Bacon, 2020). The article also provides a comprehensive list of resources available to both lawyers and their clients in case should a fee dispute arise [Appendix I]. In Appendix II, the authors provide a comprehensive list of state and/or local bar association lawyer-client fee arbitration systems for future research.

Civil Litigation Against Third-Country Defendants in the EU: Effective Access to Justice as a Rationale for European Harmonization of the Law of International Jurisdiction

The European Union has taken on an active role in harmonizing the law of international jurisdiction over civil and commercial court disputes. However, the jurisdictional rules contained in the key instrument in the area – the Brussels Ia Regulation – only apply to disputes involving EU-based defendants, save for a few exceptions where defendants domiciled in third countries are also covered. This article will explore the rationale for harmonizing the law of jurisdiction applicable to third-country defendants. This central theme is of particular interest, since further harmonization is once again on the EU’s agenda because of the upcoming revision of the Brussels Ia Regulation. The article will outline that proposals for harmonization are rooted in the aspiration to further effective access to justice. Moreover, it will demonstrate that far from a readily implementable programme, furthering access to justice is a multifaceted aim, the pursuit of which potentially has profound ramifications for the EU rules on civil jurisdiction. civil litigation, third-country defendants, law of jurisdiction, PIL, conflict of laws, Brussels Ia Regulation, harmonization

Information Dissemination on Regulation of Supreme Court Number 1 Year 2016 Regarding Mediation in the Village of Maleber Bandung

As mentioned by article 1 point 1 in Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016, mediation is an alternative resort to solve disputes through negotiation used to reach a consensus in the presence of a mediator. Mediation as an alternative dispute resolution reflects the Fourth Precept of Pancasila as the nation's character which implies resolving disputes through deliberation. Prioritizing communication is a form of deliberation carried out with the purpose of re-agreements, where there will be a possibility to improve the relationship between the parties. Resolving conflicts through mediation is an attempt to end complicated issues through a process that is time-saving and relatively cheap in providing win-win solutions. In Indonesia, the existence of mediation is based on the Regulation of the Supreme Court of the Republic of Indonesia No. 1 of 2016. Mediation has also been set as a mandatory process in the path of resolving disputes in the civil court. The method of information dissemination is carried out to create awareness regarding the new law enforced, which includes lectures and interaction. The research team in collaboration with the Maleber Village held an information dissemination activity based on the Supreme Court Regulation Number 1 of 2016 concerning Mediation. This activity would be very useful for all the parties facing conflicts as well as advisors or for third parties (mediators), such as the village apparatus, families, traditional leaders, community leaders, and other parties who are becoming completely aware of the negotiation and mediation.

Penegakan Hukum terhadap Pelanggaran Norma Adat Dayak Ngaju, atas Tindakan Kekerasan dalam Rumah Tangga (Studi di Kecamatan Tewah, Kabupaten Gunung Mas, Kalimantan Tengah)

AbstractIndonesia is a pluralistic country with a diversity of ethnic groups, who live and live throughout the Indonesian archipelago. Each ethnic group has a language, customs, religion and law enforcement against violations of customary norms that are different from one another. So far, many cases that have occurred in the community have been resolved through traditional channels such as Domestic Violence (KDRT), which always increases every year, especially in Tewah District, Gunung Mas Regency, Central Kalimantan. In addition, a legal process has also been carried out if the settlement through customary law does not find a bright spot. This study uses empirical research methods and a sociological juridical approach that provides accurate and reliable data regarding Law Enforcement Against Violations of Ngaju Dayak Customary Norms (Study in Tewah District, Gunung Mas Regency, Central Kalimantan). The basis for the authority of the relevant customary institutions is as stated in the Emergency Law Number 1 of 1951 concerning Temporary Measures to Organize the Units of PowerComposition and Procedure of Civil Courts.

Current challenges faced by transgender and gender-diverse patients and providers in anesthesiology.

Current challenges faced by transgender and gender-diverse patients and providers in anesthesiology.

ISLAMIC BANKING DISPUTE RESOLUTION: THE EXPERIENCE OF MALAYSIA AND INDONESIA

The dispute resolution mechanism in a country involving Islamic banking depends on its applicable law. A workable mechanism guarantees a harmonious settlement and ensures justice is upheld in conjunction with the spirit of Islamic law. This study aims to analyse various mechanisms to resolve Islamic banking disputes in Malaysia and Indonesia by referring to the latest legal and judicial developments in both jurisdictions. It adopts doctrinal and comparative legal research methodology whereby the relevant primary and secondary sources of law were meticulously appraised. Findings of this study reveal that both countries have their own unique way of dealing with Islamic banking and finance cases. In Malaysia, the jurisdiction is vested in civil courts with mandatory reference to the SAC in deciding Shari’ah issues. Regarding Indonesia, Article 55 (1) of Law No. 21 (2008) provides that a Religious Court shall have jurisdiction to hear matters involving Islamic banking disputes, unless there is an agreement stating that the dispute resolution should be done in another manner, provided the chosen manner does not contradict with Shari’ah principles. There is also an option to refer to the Dewan Shari’ah Nasional Majlis Ulama Indonesia for expert opinions. Both jurisdictions also acknowledge alternative dispute resolution as a mechanism for dispute settlement. This study emphasises the need to enhance the knowledge and in-depth understanding of judges in the relevant field of law; Shari’ah law for civil court judges and civil law for religious court judges, to facilitate the dispute resolution process.

Alternative Dispute Resolution and the Civil Courts

In 1996, Lord Woolf described a vision for civil English and Welsh justice, culminating in his culture-changing reforms (the Woolf Reforms) and the Civil Procedure Rules of April 1999. These impose a continuing duty on litigants to consider alternative dispute resolution (ADR) in preference to litigation, even after it has commenced, and on the courts, to encourage ADR. These duties are a central method for the delivery of justice. They required a radical new way of thinking about disputes from litigants, their advisors and the courts.
 This article focuses on Lord Woolf’s vision and his Reforms, and their impact on the approach to ADR taken by the courts since 1999. It seeks to identify how that approach informs a concept of justice within the practice of modern litigation. The approach, supported by relevant case law, presents a broader and arguably more sophisticated view of justice that involves party autonomy, dialogue, settlement, creativity, flexibility of outcome, compromise, satisfaction and saving costs, as well as the more conventional approach to determining rights at trial after due process. 
 Keywords: ADR; mediation; justice; civil justice; court reforms; overriding objective; Halsey.