Civil Disputes Research Articles

Prisustvo obeležja ius commune postupka u savremenom poljskom građanskom postupku

Social dissatisfaction with the administration of justice in Poland is closely related to excessive delays in resolving civil disputes. However, this disadvantage is only an outcome of complex and outdated regulations. In recent years, the Polish legislator has introduced various new solutions which were supposed to modernize the civil procedure and accelerate the speed of proceedings. Some of them resemble the medieval ius commune procedure features. The main purpose of this paper is to identify them and discuss their reasonableness as well as their usefulness in modern civil proceedings from the historical perspective. The conducted research leads to the conclusion that the described reform efforts are contrary to the basic civil procedure principles developed over the years, such as orality, publicity or immediacy, and cannot contribute to the expected positive effect in terms of ensuring the right of access to court without undue delay. On the contrary, the efficiency of the proceedings can only be guaranteed by open and direct communication between a court and the parties, simplified procedural rules and increased number of court staff.

ЭВОЛЮЦИЯ И ИСТОЧНИКИ ПРАВОВОГО РЕГУЛИРОВАНИЯ ODR В США

Introduction:the article explores the history of formation and development of online dispute resolution (ODR) in the USA. The author analyzes the basic concepts and characteristics of these technologies and gives examples of their use in the practice of private ODR providers and U.S. courts. The main sources of legal regulation of ODR in the USA are the rulings of state courts based on the ‘ODR Standards’ of international organizations, including UNCITRAL, NCTDR, ICODR, etc., as well as scientific works of American scientists and practitioners. Purpose: to provide an insight into the emergence and development of online dispute resolution (ODR) in the practice of private ODR providers and the practice of U.S. courts by analyzing court reports, international acts, and academic sources. Methods: theoretical methods of formal and dialectical logic; empirical methods of comparison, description, interpretation; special scientific methods such as legal-dogmatic and the method of interpretation of legal norms. Results: the study found that there is currently no legal definition of ODR in the United States; governmental bodies (including courts) and private ODR pro-viders rely on their own vision and understanding of ODR, using non-binding documents from international organiza-tions as well as academic studies developed by U.S. scholars and practitioners. There is also no common doctrinal defi-nition of ODR. Conclusions: 1) The U.S. National Center for State Courts, on its website, defines judicial (court-related) ODR as ‘a public facing digital space in which parties can convene to resolve their dispute or case’. 2) Scholars define judicial ODR as a method of ADR (alternative dispute resolution) aimed at resolving civil disputes using online plat-forms attached to a court rather than face-to-face hearings, mediation, or arbitration. 3) Barriers to the use of ODR in U.S. courts are: a) continuing transition from paper to electronic documents; b) complicated registration on ODR plat-forms; c) lack of ‘intuitive’ options for working with documents on the platform and finalizing the ODR process; d) lack of reference documents. 4) The experience of U.S. state courts in implementing ODR pilot programs as well as non-binding documents of international (UNCITRAL, ICODR) and U.S. ODR standards compliance organizations (NCTDR, ABA) can be used to improve Russian legal acts.

The leading causes behind medico-legal claims and the use of mediation as a possible solution

Medico-legal claims in the South African health sector have noticeably increased since approximately 2007. This is significant as money spent from the public health budget on these claims is money which ought to have been spent on other healthcare priorities. As such, it becomes vital to understand why these claims have shown such drastic increases and what could be done to stem the rising tide. This article addresses two main themes: first, it explains the various causes for increased claims related to the medical field and broader possible solutions to this problem; secondly, mediation is proffered as a viable means of negating the negative impact of these claims on the health sector and budget. The conventional method of resolving medico-legal disputes is through adversarial court litigation. Litigation is expensive, time-consuming, complex and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Conventional civil dispute resolution exhibits little appreciation for, or consideration of, alternative and better-suited dispute resolution techniques and mechanisms. In this article we argue that mediation offers a viable alternative to resolve medico-legal issues. In essence, mediation is third-party (mediator) facilitated dispute resolution through negotiation. The process is less expensive, less time-consuming, uncomplicated, and party-oriented. In addition, it has the potential to enhance access to justice. However, to achieve this will require a change in legal culture.

Правовой статус судебных учреждений в Кубанской области в пореформенный период (1869–1920 гг.): по материалам правоприменительной практики

On the basis of normative legal acts and archival materials, the features of the genesis of the judicial system in the Kuban region in the post-reform period are investigated. The socio-economic reasons explaining why the Judicial Statutes of 1864 were introduced in the region under consideration somewhat later than in the central provinces of the Russian Empire are revealed. With the help of historical-legal, comparative-legal, historical-archival and statistical methods of scientific cognition, the distinctive features of the formation of the post-reform judicial system in the Kuban region are identified. In particular, it is shown that, despite the all-religious principle of the work of judicial institutions, originally provided for in the relevant legislation of 1864, the features of class justice still continued to be preserved in the Kuban. The materials of judicial practice demonstrating the real specifics of criminal and civil proceedings in the Kuban region in the second half of the 19th century are analyzed. It is concluded that the current system of judicial system and judicial proceedings in the Kuban was a compilation of state and customary legal regulation. Along with the All-Russian legislation, it was based both on the religious norms of the mountain population and on Cossack customs, which were used in resolving civil disputes in the village courts.

The Decision of “Returning The File To The Lower Degree Court” in Civil Disputes By The Supreme Court Of Appeal

Temyize konu edilen kararla ilgili hukuki denetim gerçekleştirecek Yargıtay’ın incelemeye aldığı dosyada çeşitli usuli eksikliklerin ve hataların bulunması söz konusu olabilir. Kanuni düzenlemelerimize baktığımızda temyiz aşamasında esastan incelemeye geçilerek nihai kararın verilmesine engel olan usuli eksikliklerin varlığı durumunda Yargıtay tarafından ne tür karar verileceğinin net olarak belirlenmediği, bu konuda mevzuatımızda yüksek mahkemeye takdir hakkı tanıyan ifadelere yer verildiği görülmektedir. Bu bağlamda Yargıtay’ın temyiz incelemesine konu dosyada bazı usuli hatalar veya noksanlıklar tespit etmesi durumunda dosyanın mahalline iade edilmesi yönünde bir uygulama geliştirildiği görülmektedir. Çalışmamızda herhangi bir kanuni düzenlemede yer almayan ve bu zamana kadar özel olarak incelenmemiş dosyanın mahalline iadesi kararının hangi durumlarda tesis edildiği, kararın özellikleri ve hukuka uygunluğu ele alınarak bu karar tipi çeşitli açılardan netleştirilmeye çalışılacaktır.

Covid19 Disaster: Examining the Role of the Village Head in Settlement of Civil Cases

This study aims to determine the authority and role of the village head in resolving civil cases currently being faced during the Covid-19 pandemic. This study uses a normative juridical research method. The results of this study indicate that the Village Head has the authority to lead the administration of village governance, establish village regulations, foster village community life, and foster peace and order in the village community. Then the authority of the Village Head One way to resolve civil dispute cases is by facilitating, mediating, and coaching as well as motivating the public to resolve disputes between the two parties. The role of the Village Head in resolving civil dispute cases is as a peace judge before entering the realm of litigation. It was found that the role is the same as that of judges in the realm of litigation, in that the village head becomes a facilitator in civil matters or cases, plays a passive role but is oriented towards mitigating more widespread conflicts within his territory. The COVID-19 pandemic has reduced the resolution of disputes into the realm of litigation, but many have been resolved by village heads as an anticipatory measure against the spread of the virus. The results of this study recommend that the role of the village head can carry out the function of a judge in resolving civil issues through training organized by relevant institutions for the settlement of civil cases.

THE DEVELOPMENT OF PRIVILEGED COMMUNICATION RULE UNDER THE MALAYSIAN EVIDENCE ACT 1950

It is observed that if there is a civil dispute between the parties, they may try to settle it outside court, for example, by using the process of alternative dispute resolution. When there is actual cause of action between the parties, the settlement might be done through negotiations. If such negotiation settlement fails, they might bring the matter to the court and if any party wants to admit the damaging statements made during the negotiation, these statements or communications are privileged as “without prejudice communication” under s. 23 of the Malaysian Evidence Act 1950.The issue is whether the law requires some changes and new mechanism to adapt ‘without prejudice’ privilege at present. Is the rule absolute? What are the exceptions that have been ruled out by the Court which can be considered as the limitations of the rule? The objective of this paper is to discuss the matters

ПРАВОВІ АСПЕКТИ ПРОВЕДЕННЯ ПОЧЕРКОЗНАВЧОГО ДОСЛІДЖЕННЯ

The article is devoted to the analysis of regulatory and legal aspects regarding the conduct and appointment of handwriting expertise in civil proceedings. It is noted that the legal nature of the handwriting examination presupposes the availability of special knowledge in the field of science, which allows with a very high percentage of accuracy to establish or disprove facts that are important in the consideration of a case and the resolution of a civil dispute. Handwriting expertise is important for both sides of the litigation. It was determined that the study of writing and handwriting has gone a long way in its development and the method of conducting handwriting research is constantly being improved. The concept of handwriting examination is characterized in the scientific work. The concept of “legal expert”, “civil litigation expert”, “judicial expert” was studied. Attention was drawn to the absence in the civil procedural legislation of Ukraine of a clear and detailed regulation of the concept, legal nature, procedure for collecting materials and direct forensic examination. The main legislative scientific-methodological recommendations on the preparation and appointment of handwriting examination have been analyzed. Emphasis was placed on the study of copies of handwritten records and signatures obtained by electronic means and electronic photographic means. The legal aspects of the assessment of the expert's decision based on the results of the court's handwriting examination have been studied. The role of handwriting research in the process of law enforcement is determined. Handwriting research is defined as one of the most effective means of proof. It was concluded that the expert's decision is a valid piece of evidence in the case, however, its content should be carefully checked and studied by the court, and the assessment should be carried out in combination with all the circumstances of the case. Problematic aspects of the researched area are formulated. Attention is focused on the lack of a proper mechanism of legal regulation in civil procedural legislation regarding a clear algorithm of court actions during the appointment of expertise, especially in the aspect of collecting material for expert research. Proposals have been made to improve the legislation regarding the procedure for collecting samples for handwriting examination and the direct participation of a judge in this process.

The Role of the Badan Arbitrase Nasional Indonesia in E-Commerce Dispute Resolution through Online Arbitration

The purpose of this study was to determine the role of the Indonesian National Arbitration Board (BANI) in the process of e-commerce dispute resolution through online arbitration. The research method was carried out using a normative juridical approach and was descriptive analytical, then the data obtained were analyzed in a qualitative juridical manner. The results obtained that the Indonesian National Arbitration Board (BANI) has a very important role in resolving e-commerce disputes through online arbitration, although there are no explicit rules governing this matter, the existence of the BANI institution is one of the alternative choices for parties. - the disputing parties in e-commerce to resolve the dispute. The Indonesian National Arbitration Board (BANI) is one of the alternative dispute resolution institutions outside the court (non-litigation) that has the authority to resolve civil disputes including online/e-commerce business disputes through arbitration methods, both conventional arbitration and online arbitration. The conclusion of this study is that the development of electronic commerce (e-commerce) has inspired electronic dispute resolution as well, which is more effective, namely through on-line arbitration, through the Indonesian National Arbitration Agency (BANI). The impact of this research, among others, provides a profitable choice for the parties to the dispute in e-commerce to resolve their dispute more effectively through arbitration through the Indonesian National Arbitration Board (BANI).

НЕСУДОВІ ФОРМИ ВИРІШЕННЯ ЦИВІЛЬНИХ СПОРІВ: МІЖНАРОДНИЙ ДОСВІД ЗАРУБІЖНИХ КРАЇН

The article is devoted to the study of non-judicial forms of resolving civil disputes in the current legislation of Ukraine, with reference to foreign practice, the use of these forms. The main forms of dispute resolution are indicated and the concept and content of alternative dispute resolution are analyzed. The main methods in which alternative dispute resolution is expressed are determined, the advantages and differences of each of the methods are investigated. The importance of the development of non-judicial forms of development is also evidenced by international standards. Since Ukraine is trying to meet the European vector of development, the question arises about the compliance of national legislation with international standards, including in the field of civil disputes. First of all, the existence of non-judicial norms for resolving civil disputes indicates the development of democracy in the country, which is manifested in the ability to resolve the conflict without litigation, but in its own environment. However, effective regulation requires a clear enshrinement of these provisions at the level of law, which confirms the favorable development of the state. Referring to international practice, it should be noted that there is a significant number of recommendations that encourage the introduction of new non-judicial forms of civil dispute resolution. This raised the question of introducing a so-called alternative settlement of civil disputes. A significant number of European countries have enshrined this institution at the legislative level. Non-judicial forms of dispute resolution, in particular, are designed to avoid complaints about the improper performance of their functions by the judiciary, which is what led to the emergence of such a system in civil proceedings, which consists in resolving legal conflicts outside the judiciary. Thus, each of the non-judicial forms is characterized by its own procedure for the application and resolution of civil disputes. The need to create such forms arose due to Ukraine's efforts to meet international standards. After all, in foreign countries, the policy of reducing the role of judges in resolving minor disputes, which can be clarified without the need to go to court, is gaining considerable popularity.

Arbitrase Sebagai Alternatif Penyelesaian Perkara dalam Hukum Positif dan Hukum Islam

The sharia-based economy in Indonesia has experienced significant development. Along with the growth of the sharia economy, the emergence of disputes between the parties to the transaction is also increasing. On the other hand, resolving disputes through the courts requires a lot of time and money. Thus, alternative dispute resolution (APS) emerged, one of which was arbitration. This study aims to describe the concept of arbitration in positive law and tahkim in Islamic law. This research is a qualitative research using library research. This study uses a normative juridical approach. The results of the study show that arbitration and tahkim are both alternative dispute resolutions by appointing a third party as arbitrator or judge. The difference is in the requirements to become an arbitrator / judge where in Islamic law there is a requirement to be Muslim. Regarding its authority, arbitration is only authorized in the civil sector based on an arbitration agreement, while in tahkim its authority is broader in terms of muamalah, social and even political. Another difference is that in positive law the court is only authorized to execute the arbitration award if requested by one of the parties. Meanwhile, in Islamic law, the court has the authority to cancel the decision of the tahkim if it is contrary to the provisions of syara'.Keywords: tahkim, civil disputes, sharia economics

Research on Judicial application of Village Regulations and Civil Covenants in Civil Disputes

With the promotion of the rural revitalization strategy and the transformation of rural society, the number of cases involving civil disputes of village regulations and civil agreements is increasing. Due to the lack of relevant judicial rules, courts are faced with judicial dilemmas such as unclear scope of accepting cases, different standards of legality review, and ambiguous identification of membership of collective economic organizations. Based on 386 judicial precedents related to village regulations and civil covenants in civil disputes, data analysis and countermeasures are carried out. By clarifying the scope of cases accepted by the court, the subject and standard of legality review, and the standard of collective economic organization membership identification, the rules provide countermeasures for the judicial organs to resolve the civil disputes of village regulations and civil agreements, so as to protect the legitimate rights and interests of villagers.

SETTLEMENT OF CIVIL DISPUTES BETWEEN CUSTOMERS WITH BANK THROUGH BANKING MEDIATION (Case Study of Bank Al Washliyah Medan)

A conflict can originate from the engagement or outside the engagement. Conflicts originating from the engagement arise when one of the parties to the agreement defaults or denies the contents of the agreement. One party views that the contents of the agreement must be fulfilled, the other party views that the provisions or contents of the agreement can be denied. So according to the title I researched, namely "Civil Dispute Resolution Between Customers and Banks Through Banking Mediation" who conducted a case study at Bank Al-Washliyah Medan. The problems discussed in this study are what causes banking disputes at Bank Al Washliyah Medan? What is the procedure for resolving disputes between customers and banks through the banking mediation process at Bank Al Washliyah Medan? And how is the legal protection for bank customers through mediation at Bank Al Washliyah Medan?. This research method uses normative legal research which is legal research conducted by examining library materials or secondary data. The data collection technique was carried out by interview and documentation, then to analyze the data used a qualitative approach, namely by analyzing the data in depth and then interpreting it.

Reconstruction of Niet Ontvankelijke Verklaard Verdict In the Law of Civil Procedure as a Manifestation of Fast, Simple, Low Cost and Complete Principle of Justice

Dispute resolution through court is more favorable because the binding decisions of judges can resolve cases. This study discusses ratio legis of niet ontvankelijke verklaard in the law of civil procedure and in the formulation of the delimitation of the judge in giving niet ontvankelijke verklaard in the fast, simple, low cost, and complete settlement of civil disputes. This study used legal research methods with legislation and conceptual approaches. The result of the study showed that The limitation of the judge in examining the lawsuit that does not meet the formal requirements and decides the lawsuit is inadmissible (niet onvankelijk verklaard), in the absence of fast, simple, low-cost, and complete civil disputes, as stated in the Draft Bill of the Law of Civil Procedure, which is essentially related to the types of exceptions that can become the basis for the judge in determining the lawsuit to be inadmissible (niet onvankelijk verklaard). Indonesia's current civil procedure laws, HIR and RBg, do not specifically outline the standards that a judge must employ to declare that a matter is inappropriate for filing (niet onvankelijk verklaard). Before making a ruling that is not admissible (niet onvankelijk verklaard) in the settlement, the judge must be aware of his or her restrictions in this situation. As stated in the Draft Bill of the Law of Civil Procedure, the judge is limited in examining lawsuits that do not meet the formal requirements and deciding that the lawsuit is inadmissible (niet onvankelijk verklaard), in the absence of quick, easy, inexpensive, and comprehensive civil disputes. This limitation is essentially related to the types of exceptions that can become the basis for the judge in determining that the lawsuit is inadmissible (niet onvankelijk verklaard)

Hibah Wasiat Atas Tanah Bekas Adat Berdasarkan Akta Hibah Wasiat Yang Dibuat Oleh Camat

A testamentary grant on ex-customary land as an object of the dispute by looking at the Court's Decision which decided on a civil dispute case Number: 21/Pdt.G/2015/PN/BLK which in its decision rejected the plaintiff's claim that the ex-customary land belonged to him, because the defendant has proof of ownership, namely a will grant deed carried out by the Camat as PPATS. This study aims to analyze the strength of the proof of the will as the basis for land tenure and ownership, as well as to analyze the validity of ownership and control of ex-customary land rights based on the testament grant deed made by the sub-district head as PPATS. This study uses empirical research methods, by analyzing the data collected through interviews and literature study, then the collected data is analyzed using descriptive analysis techniques. The results of this study indicate that the testament grant deed in the case of the Civil dispute Number 21/Pdt.G/2015/PN/BLK does not have a basis of manufacture where the will grant deed does not have a certificate and is only made in front of the sub-district head as PPATS, further should have been canceled by the Bulukumba District Court because it was not following the procedure for making a will and the beneficiary did not get his rights. So that it does not have the validity of ownership and control of rights if it is based on a will grant deed made by the sub-district head as PPATS

Application of A Judge's Ruled In A Civil Dispute

In 2005, the trial of land grant dispute was held between the Diocese of Amboina as the plaintiff against MR et al. as a defendant in the District Court Tual Southeast Moluccas. This trial was won by the Diocese of Amboina. The defendant then filed an appeal, Cassation and judicial review up to the level of the Supreme Court. Based on the Supreme Court decision no. 166/Pk / year 2010, the panel of judges ruled that the Diocese of Amboina as the legal owner of the land and sentenced the defendant to pay a fine and return the object of dispute without any conditions. Since the issuance of the decision until now, the Diocese of Amboina has not executed the land object, because the Diocese of Amboina has not submitted an application for execution to the District Court in accordance with the provisions of Article 196 HIR due to normative juridical considerations of the church; humanitarian reasons and the urgency of utilizing the object of dispute.. The purpose of this research is to understand the application of Supreme Court decision No. 166/Pk/Pdt / 2010 in dispute over land grant Diocese of Amboina. The author uses normative juridical methods and also through interviews to obtain information as a support in writing this thesis. The result of the research found that decision has permanent force and for the realization of justice and legal certainty for the parties, especially the Diocese of Amboina, the execution action must be carried out immediately in cooperation with the local district court.

Law on settlement of civil disputes involving foreign elements at the Courts in Vietnam

The settlement of civil disputes involving foreign elements is a relatively complicated issue due to conflicts of laws and conflicts of jurisdictions in private international law. This article analyses Vietnamese laws on identification of jurisdictions of the Courts and identification of applicable laws to settle civil disputes involving foreign elements. On those grounds, this article points out certain shortcomings of the laws and provides an orientation for the completion of Vietnamese laws.

Problems of implementation of extrajudicial methods of protection of civil rights

Introduction. The right to protection is one of the main powers of subjects of civil legal relations. The definition of jurisdiction in the law is aimed at eliminating the violation of the law and the influence of the subject of civil legal relations on ensuring the real exercise of civil rights. The purpose of the paper is to study the problems of applying the system of forms and methods of out-of-court settlement of civil legal disputes (conflicts) by conducting an analysis of theoretical and practical aspects. Results. The non-judicial form of protection of civil rights is determined by the possibility of choosing among the indicated methods of protection of private rights among several non-judicial (non-jurisdictional) methods of dispute resolution. This method of out-of-court settlement of a dispute (conflict), such as self-defense, is an effective way of protecting private law, but it is limited in time of application. In order to restore the trust of each of the parties, preserve relations and business reputation, the parties can use such an extrajudicial method of resolving the dispute (conflict) as negotiations. Although negotiations are defined as an effective method of out-of-court settlement of disputes with the protection of the rights and interests of citizens, there remains a risk of non-implementation or incomplete implementation of the agreements reached, which, in turn, may lead to delays in the process of timely protection of the violated right. Mediation is a relatively new out-of-court way of protecting private rights by resolving civil disputes (conflicts). When using the mediation procedure, the parties can reach a consensus, but the resolution of the dispute may go beyond the subject of the violated right. Conclusion. Out-of-court methods of protecting private rights provide an opportunity not only to resolve disputed issues outside the court, but also to save time, financial resources, preserve friendly or partnership relations, and also to go beyond the boundaries of a contentious legal dispute. relations and receive additional bonuses when defending an infringed, unrecognized or contested right.

Mediators Optimization of Civil Disputes Mediation Process at Post-Perma Court No. 1 of 2016

This study aims to analyze the factors causing the unsuccessful mediation process carried out by the mediator in resolving civil disputes, as well as what steps are important for the existence of the mediator in conducting the mediation process for civil disputes in court in accordance with the mandate of Perma Number 1 of 2016. This research method uses empirical legal research, namely research that looks at the application of legislation in society. The research conducted by the researcher belongs to the type of field qualitative research, namely research that emphasizes the completeness of the data collected in the form of primary and secondary data. The results showed that factors that cause the unsuccessful mediation process carried out by the mediator in resolving civil disputes. First,Certified mediator,The first obstacle regulated by the Supreme Court is admitting an intermediary or third party in the mediation process with a certification issued by the Supreme Court. This is an obstacle, why is that? Because basically a third party or mediator in the mediation process is not required to have a mediator certificate. A logical consequence that arises in the courts is also the limited number of judges with the high quality of cases which do not maximize the mediation process. The effectiveness of the implementation of peace efforts is influenced by the number of cases charged to judges. This will actually affect the performance of a judge in seeking peace for the parties. Another obstacle is the facilities and infrastructure in carrying out mediation.

STUDY ON CIVIL LITIGATION PSYCHOLOGY AND LEGAL IDENTITY FROM THE PERSPECTIVE OF EMOTIONAL BEHAVIOR REGULATION

STUDY ON CIVIL LITIGATION PSYCHOLOGY AND LEGAL IDENTITY FROM THE PERSPECTIVE OF EMOTIONAL BEHAVIOR REGULATION