Civil Jurisdiction Research Articles

Implementation of Mediation As Online Dispute Resolution (ODR) in Civil Jurisdiction

This writing aims to examine and analyze business/civil dispute resolution through online dispute resolution (ODR), institutionalization of mediation in civil cases in court, implementation of mediation as online dispute resolution (ODR) in civil courts, obstacles and legal implications for parties - the litigants. Mediation as an alternative dispute resolution mechanism outside the court has long been used in various business and civil cases, the environment, labor, land, housing, consumer disputes, and so on which is a manifestation of society's demand for fast, effective and efficient dispute resolution. The issuance of Perma Number 1 of 2016 concerning Mediation Procedures in Courts and Perma Number 3 of 2022 concerning Electronic Mediation in Courts further strengthens efforts to reconcile as stipulated in Article 130 HIR/154 Rbg. Even so, dispute resolution through mediation in court is actually a vulnerable mechanism, meaning that the possibility of failure is also very large. Anticipating this requires prerequisites that must be met, such as trust, willingness or willingness to waive some of the rights of each party to the dispute, and the availability of a professional mediator.

Making Law Possible

Making Law Possible

Research on the reasons and regulation of the abuse of the objection system of civil procedure jurisdiction

The legal provisions on objection to jurisdiction are scattered in the legal provisions of the pretrial procedure of the Civil Procedure Law of the People's Republic of China and relevant judicial interpretations, and the content of the provisions is rough and the directivity is unclear. The party who raises the objection to jurisdiction is precisely using the loophole of the system to abuse the right of objection to jurisdiction in the civil procedure law. Therefore, this paper summarizes the reasons for the abuse of objection to civil jurisdiction in China, puts forward specific measures to limit the abuse of civil jurisdiction, and promotes the improvement of the system.

Current issues of granting a minor person full civil capacity in civil jurisdiction

Current issues of granting a minor person full civil capacity in civil jurisdiction

Legal status of the prosecutor in arbitration proceedings

The article examines the legal position of the prosecutor in the system of participants in arbitration proceedings. Based on the analysis of the nature of arbitration proceedings and civil cases considered by arbitration courts, it was concluded that, despite the consolidation of the independent constitutional status of arbitration proceedings as a separate procedural form of protection, it is still impossible to draw a clear distinction between civil and arbitration proceedings. Both in civil and in arbitration proceedings, both private law and public law disputed legal relations are the subject of judicial activity. This circumstance determines the commonality of the goals and objectives of civil and arbitration proceedings, which directly affects the procedural status of the persons involved in the case. The prosecutor traditionally treats the legislator to the persons participating in the case, both in civil and in arbitration proceedings. A retrospective look at Russian procedural legislation led to the conclusion that it is necessary to maintain the supervisory function of the prosecutor not only in civil, but also in arbitration proceedings. The truncated powers of the prosecutor in the arbitration process do not correspond to the tasks he performs in the field of civil jurisdiction, and it is proposed to expand them in a number of areas.

In support of free-standing Indigenous legal systems

Abstract US and Canadian approaches to tribal legal orders have taken different paths, and here I argue that the Canadian model should move towards free-standing Indigenous courts as they currently exist in the United States. The Canadian approach has focussed on the issue of over-incarceration of Indigenous prisoners, but even newer efforts have stopped short of recognising at least partial criminal and civil jurisdiction. The Canadian approach fails to support Indigenous jurisdiction and community rebuilding and leaves Indigenous peoples vulnerable to non-Indigenous judges, who fail to accommodate Indigenous approaches to justice. Early attempts at shared jurisdiction have been naïve regarding Indigenous internal social processes and the struggle over what constitutes proper cultural practices. My data come from my own work with Coast Salish tribes, where I have studied tribal histories and legal practices on both sides of the international border as well their views of federal policy in both Canada and the United States.

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

Reflections on the Roles of Apex and Intermediate Courts in New Zealand

The Supreme Court of New Zealand replaced the Privy Council as New Zealand’s final appeal court in 2004. Appeals to the Privy Council in the general civil jurisdiction lay as of right, but all appeals to the Supreme Court were to be by leave. The legislature chose not to change appellate structures and pathways which had long been designed to limit the number of appeals by leave. Rather, it was hoped that the Supreme Court’s broader jurisdiction and accessible location would allow it to meet its objectives as a final appellate court.
 The Supreme Court has done much to develop law for New Zealand conditions. But the number and quality of leave applications constrain its substantive output, which has apparently stabilized at a level substantially lower than was predicted in 2004. The underlying causes can be located in appellate structures and pathways which constrain demand and also affect the Court of Appeal.
 This paper examines those constraints and the Supreme Court’s attempts to address them. It identifies consequences for the distribution of law development and supervision of precedent as between the Supreme Court and Court of Appeal. The paper is a call for dialogue rather than a prescription for reform, but it does suggest that consideration should be given to adjusting pathways to improve the range and quality of work decided by panels of three and five judges. It argues that courts in an appellate hierarchy must pursue a collaborative approach if law is to be developed in a reasonably timely and cost-effective way in the common law case-by-case tradition, and it suggests that is best done through appellate restraint and conservative application of the rules of precedent.
 Keywords: appellate courts; distribution of responsibility for precedent; appeal pathways and leave criteria.

Digital Technologies and Justice Efficiency

The development of digital technologies has inevitably put on the agenda the problems of their application in judicial activity, primarily in justice in civil cases. Digitalization is actively penetrating the legal proceedings, procedural legislation and approaches to its application are changing. At the same time, traditional forms of judicial activity remain. The range of directions for the introduction of modern technologies is expanding following the achievements of scientific and technological progress. The author sets out to identify the relationship between the use of information technology and improving the efficiency of justice. The study showed that digital technologies can become an effective means of ensuring the effectiveness of civil and arbitration proceedings, reducing its costs and reducing the time for resolving cases. Digital technologies are able to ensure the efficiency of legal proceedings in modern conditions; however, they carry risks and problems, the solution of which should be suggested by procedural science. A special role is assigned to artificial intelligence technologies and machine learning methods. Scientists argue about the possibilities and social justification of their use in judicial activity. The attitude towards artificial intelligence on the part of specialists is extremely restrained. However, the experience of China, the USA, Germany, as well as domestic developments indicate an increasingly active and inevitable introduction of artificial intelligence into the system of civil jurisdiction. At the present stage, there is no point in discussing the possibility of using artificial intelligence in the civil process; it seems more productive to discuss its conditions and potential. In the paper, for the first time in Russian procedural science, it is proposed to consider the effectiveness of judicial protection implemented with its support as a key condition for the use of artificial intelligence in civil and arbitration proceedings. The author’s conclusions can be applied in practical activities to improve justice and procedural legislation.

Penalty Default Rules in French, German and Louisianan Contract Law

Abstract Some American law and economics scholars have used the term “penalty default rules” to describe default rules that are undesirable to at least one party to a contract. Parties have incentives to depart from these default rules and to share information in doing so. In a recent article, I brought this concept outside of the United States, the common law tradition and the law and economics literature by using it to describe a selection of rules in Québec contract law. In this article, I build on that work by identifying a selection of penalty default rules in three other civilian jurisdictions – France, Germany and Louisiana – that apply to contract formation, contract interpretation, changed circumstances and remedies for breach. Then, I argue that the penalty default rules that I have identified serve two valuable functions. First, they enhance at least some parties’ freedom of contract by better equipping them to make informed decisions. Second, they complement the duty of good faith by incentivizing the sharing of information, including information that might not always need to be shared in order to comply with the duty of good faith. Although these functions are somewhat different than those that law and economics scholars have attributed to American penalty default rules, my analysis reveals that penalty default rules both exist and have value in the civilian world.

The expertise effect: the impact of legal specialists’ intervention on the timely delivery of laymen's judgments

France relies exclusively on lay assessors to solve conflicts between entrepreneurs and employees for the longest time compared to any other civil jurisdiction. Given the lack of legal training of labor judges, the paper tests whether an intensification in the offer for legal services, whether coming from professional judges or specialized labor lawyers, induces delays in the procedure. Using a two-stage least squared estimating method and an innovative dataset on French labor courts between 2013 and 2017, the manuscript estimates the effect of an increase in the intervention of legal experts in labor litigation. The analysis showed that referrals to a professional judge delay labor cases’ solutions but refuted the long-standing economic theory that lawyers induce delay to acquire higher fees. This study indicates that the current structure of employment courts, entirely left in the hand of laymen with little knowledge of the ever-changing labor legislation, should be reconsidered to foster collaborative solutions accounting for industrial experience and, at the same time, legal competency.

Inadequate subject composition of the parties in a civil case as a new ground for restricting judicial jurisdiction: the problem of the official – defendant in civil proceedings (on example of a labor dispute)

Introduction: Recent case law of the new Supreme Court has pointed to the possibility of limiting the jurisdiction of courts in civil cases due to incorrect identifi cation of the defendant. Thus, in a labor dispute over the plaintiff ’s reinstatement as a schoolteacher, the Supreme Court closed the case because the lawsuit was fi led not against the school but directly against the school’s principal, whose actions the plaintiff challenged. This approach of the Supreme Court to civil jurisdiction is new and has not been the subject of scholarly research, in particular in terms of the legal impossibility of civil proceedings, which courts cannot consider at all, in particular due to inadequate subjective composition of the parties, if the defendant specifi ed an offi cial. The aim of the article: The aim of the article is to scientifi cally and practically analyze the issue of improper subject composition of the parties in a civil case as a new basis for limiting judicial jurisdiction through the prism of the problem of an offi cial as an improper defendant in civil proceedings, and formulate conclusions on legal possibility (impossibility) of consideration of claims fi led against an offi cial. Results: Based on the analysis of the theoretical foundations of civil procedure and judicial practice, the status of the improper defendant and the procedural consequences of fi ling a lawsuit against him are revealed. The issue of participation in the civil case of «offi cials – defendants» as participants in civil procedural relations and the procedural consequences of such participation are reviewed. It is established that exactly in a lawsuit it is embodied the substantive legal claim of the plaintiff , the elements of which are the subject, grounds and parties. In view of this, the existence of civil litigation can be denied only if the parties (plaintiff and defendant) do not have civil procedural capacity (excluding the ability to have civil procedural rights and obligations of the party), which excludes the existence of the party as participant in the case. Since all natural and legal persons have civil procedural legal capacity, the indication in the lawsuit as a defendant of any natural or legal person and provided it was determined the subject of the claim civil relations, and the basis – the existence of a legal dispute (regardless of legality or proof determination of the defendant), this legally causes a violation of civil procedure with the possibility of further replacement of the improper defendant. In addition, since both the plaintiff and the defendant are parties to a civil case only as a natural person or legal entity, even if the defendant stated in the statement of claim an offi cial, such an offi cial is a party to civil proceedings as a natural person. Consequently, the offi cial – defendant acts as a participant in a civil case as a natural person, regardless of position or place of work, because another status natural person – the defendant in accordance with the provisions of procedural law in civil proceedings can not have. Conclusions: It is proven an incorrect approach, which denies the legal possibility of considering claims against the defendant – offi cial, because such a defendant (individual in the status of offi cial) is a party to a civil case on the basis of his civil procedural capacity as an individual. It is concluded that for civil proceedings the presence of a status of offi cial may not be relevant to determine the possibility or impossibility of consideration by the court of a claim against such an offi cial, even if he is an improper defendant, if the relevant legal dispute falls within the jurisdiction of the court and the plaintiff has the right to go to court with such a claim. Key words: civil proceedings, civil case, parties, improper defendant, offi cial, judicial jurisdiction, restrictions, claim.

ALMAN VE İSVİÇRE HUKUKUNDA KAMU GÖREVLİLERİNİN DAVRANIŞLARI SONUCU MEYDANA GELEN ZARARLARDAN İDARENİN SORUMLULUĞU

It is possible that public officials who perform the actions of the administration, which has a wide organizational structure and field of activity, may harm individuals during the performance of public service. In principle, these damaging behaviors are attributed to the administration. According to which liability provisions the administration will be held responsible for damages arising from the behavior of public officials during the execution of administrative service, German and Swiss legal systems are regulated differently from Turkish law. For example, in German Law, the responsibility of the administration is resolved in civil jurisdiction, according to the provisions of private law. Since our law terms of the responsibility of the administration, is based on the French system, there are generally works comparable to the French law. There are a limited number of studies about the responsibility of the administration caused from the activities of the public officials, on the German and Swiss law. In this study, it was aimed to fill this gap and was tried to be examined according to German and Swiss laws, of the responsibility of the administration for the damages caused by the faulty performance of the public duty.

Lack of registration of information on the application for traction on the subject of encumbrance as a change, which excludes the possibility of recovery under the writ of execution of the notary

The article deals with problematic issues related to the execution of notaries of inscriptions. It is noted that the number of concluded credit agreements is drawn up every year. The share of non-performing loans is also growing. In case of late repayment of funds by the borrower, it is possible to apply to the court or a notary with the use of funds and receive interest on the loan.
 In this case, to a large extent there is a possibility of collecting the relevant funds under the writ of execution of the notary. The notary makes inscriptions to the executor if the submitted documents confirm the indisputability of the debt or other liability of the debtor to the debt collector and provided that no more than three years have passed since the date of the claim.
 It is emphasized that the problem with this problem is that the current legislation does not define an exclusive list that indicates a dispute over debt. It is noted that in case of consideration of the case in court, these circumstances must be established in court.
 In this case, such a procedure that excludes the possibility of foreclosure on the executor of the notary's inscription on the removal of foreclosure on the subject of encumbrance. It is noted that the Grand Chamber of the Supreme Court in this matter ensures the unity of judicial practice of courts of commercial and civil jurisdiction.
 Emphasis is placed on the fact that, taking into account the judiciary, a notary public practitioner has no right to make a writ of execution if the encumbrancer does not comply with the Law «On securing creditors' claims and registration of encumbrances». A prerequisite is the receipt of the debtor's breach of the secured encumbrance by the association's obligations, as well as the mandatory registration in the Register of information on the recovery of the security association. It is important to comply with the 30-day period from the moment of registration in the Register of information on the application for recovery for security encumbrances. In general, the notary's observance of all the necessary formalities does not allow the notary to recognize the writ of execution as unenforceable.

КОНЦЕПТУАЛЬНЫЕ ОСНОВЫ ЮРИДИЧЕСКОЙ ОТВЕТСТВЕННОСТИ В ЦИВИЛИСТИЧЕСКОМ ПРОЦЕССЕ

Despite the ongoing reforms, today a very large number of procedural violations committed by participants in the proceedings continues to be observed during the consideration of judicial disputes, largely due to the inefficiency or insufficiency of the legal liability measures currently in force. There is also a high degree of inconsistency in law enforcement practice regarding the application of procedural liability measures for unfair procedural behavior, late or incomplete presentation of evidence, and delay in the trial. The author also presents the most acute problems of legal regulation of legal liability and outlines specific proposals to overcome them. The article presents the thesis that it is characteristic and necessary for the adversarial model that legal liability is closely interrelated with the model of the adversarial model of civil proceedings, differing in the degree of development and substantive characteristics of measures against unfair procedural behavior, proportionality (proportionality) of the size of punitive liability were proportional to the price of the claim, the active use of legal fictions / presumptions. It is concluded that it is necessary to develop and scientifically substantiate a new model of legal responsibility in the entire civil procedure. This model should be based on the following conceptual foundations: uniform legal regulation of legal liability in the framework of the entire civil procedure; strengthening of adversarial principles in the implementation of legal responsibility, including by improving liability measures against unfair procedural behavior, etc.; the introduction in non-judicial civil jurisdictions of rating systems for evaluating the activities of bodies and persons engaged in procedural and procedural activities, and the application of legal liability measures based on them.

Good Faith and Relational Contracts: A Scots-Roman Perspective

One of the most striking differences between the Civilian jurisdictions and the English common law has been the reluctance of the latter to adopt a general principle of good faith in contract. Scots law, however, often seeks to exercise the functions of good faith but does not recognise it as a general principle. In recent years, English law has begun to identify good faith as an implied term in “relational contracts”, a concept with sociological and economic origins. This article applies that development to Scotland by exploring the relationship between good faith and the relational contract from a Scots-Roman perspective. It will be shown that the historical sources of Scots contract law, from the Roman reception to the Institutional Writers, are fully compatible with relational contracts. It goes on to consider how a Scots law approach to good faith in relational contracts might orientate itself to the English authorities.

REASONABLENESS OF NOTARIAL ACTS AS A COMPONENT OF ENSURING STANDARDS OF LATIN NOTARIES: THE EXPERIENCE OF UKRAINE

Background: This article is devoted to the study of the rules of notarial acts, the observance of which ensures the reasonableness of notarial acts as exemplified by Ukraine as a state belonging to the countries with Latin notaries. At the same time, the standardisation of Latin notary standards in Ukrainian legislation is associated with certain problems that do not fully reveal the potential of the notary and its functions as a body of undisputed civil jurisdiction. In this regard, the purpose of the work is to determine the components of the procedural mechanism to ensure the reasonableness of notarial acts, identify those shortcomings in their standardisation that lead to litigation, and formulate proposals for further improvement of notarial law on this basis. Methods: In the present research, we used the following methods: logical, systemic, specific sociological, hermeneutic, and modelling. It is established that the reasonableness of notarial acts is ensured by compliance with the rules on submission of evidence documents, requests for evidence documents by a notary, the signing of notarial documents, sending documents for examination, the compliance of documents submitted for notarial acts with statutory requests, and clarifying the will of the persons concerned. Results and Conclusions: It is proved that a notarial act issued based on the actual circumstances established within the notarial case, confirmed by the relevant evidence provided by the notarial legislation, should be considered reasonable. The grounds for exercising the powers of a notary to demand documents are determined, and the need to differentiate the order of recovery depending on the subjects in which such information is requested is emphasised. The content of the notary’s powers to request documents is clarified, and the conditions under which the exercise of such powers should be considered the notary’s duty are determined. The necessity of extending the duties of a notary to establish the will and real intentions of the persons concerned to all notarial acts and, in this regard, the standardisation of such a duty as a general rule of notarial acts is substantiated. It is concluded that the distinction between documents for which the originals are subject to preservation in the notarial file and those that are photocopied then returned to interested persons should be made, taking into account the loss or preservation of their validity and legal significance after said notarial action. The author determines the grounds and conditions for sending a document for examination, which is a procedural action of a notary that can be made only at the initiative or consent of the person who submitted the document. The proposals on the tendencies of standardisation of the content of the requirements of the validity of notarial acts and the consequences of their violation are formulated.

ЮЛІАН ЗАЯЦЬ – ПРАВОЗНАВЕЦЬ, ХУДОЖНИК, СПІВАК (1880–1971)

The article covers the professional, scientific and artistic activity of Yulian Semenovych Zayats (1880–1971). The figure of Yulian Zayats remains a little-studied figure among Ukrainian jurists and artists. Studying at the Faculty of Law of the Lviv University in 1899–1904, Julian Zayats published in 1904 an article «Jusus fructus nominis» in the «Journal of Law and Economics». In 1907 this scientific work was finalized and defended at the Lviv University. In 1901–1902 he studied at the Faculty of Law of the Jagiellonian University and at the Krakow Academy of Arts. Since 1906 he had been working in the financial prosecutor's office in Lviv. In 1909 he received a scholarship from the Austrian Ministry of Education and Religion and completed an internship at the Faculty of Law of the University of Berlin in 1909–1912 to write a doctoral thesis as well as studied at the Berlin Academy of Arts. In Berlin, Julian Zayats prepared a doctoral habilitation thesis in Polish on the topic: «Jus jurandum in litem», which was submitted for defense to the Faculty of Law of the Lviv University in 1912. Due to the position of Polish university professors, as Julian Zayats notes in his autobiography, the text of the thesis was lost and the defense did not take place. During the First World War, as an officer of the Austro-Hungarian Army, he took part in hostilities and taught ballistics at the Military Artillery School in Budapest. After Poland's conquest of western Ukraine, he worked as a lawyer and taught Roman law at the Ukrainian Secret University in Lviv. He continued to work in the Polish state treasury again. At the request of Metropolitan Andrei Sheptytsky, he provided legal advice to him and the Greek Catholic Church as well as prepared an appeal to the League of Nations and the Vatican regarding the discriminatory policy of the Polish state towards the Ukrainian population during the so-called "pacification". During the interwar period he studied at the Lviv Conservatory and gave solo concerts in the cities of Western Ukraine and Poland. In January 1939 he was appointed a judge of the Administrative Tribunal of Poland by the President of Poland I. Moscitsky. During World War II, he headed a non-German court in the Galicia district, jurisdiction of which included minor criminal and civil jurisdictions. After the liberation of Western Ukraine from Nazi Germany, Julian Zayats was arrested but was released two months later because of lack of corpus delicti. In 1945–1946 he worked as an associate professor at the Department of Civil Law and Procedure of the Lviv University, and subsequently in the Lviv Scientific Library named after V. Stefanyk as a bookbinder and librarian. He left a great artistic legacy. He exhibited his paintings at exhibitions in 1929, 1930, 1937 and other years.

РЕЦЕНЗИЯ НА КНИГУ Е.А. ИВАНОВОЙ «СОГЛАШЕНИЯ В СФЕРЕ ГРАЖДАНСКОЙ ЮРИСДИКЦИИ: ПРОЦЕССУАЛЬНО-ПРАВОВОЙ АСПЕКТ»

The review presents the book by E.A. Ivanova “Agreements in the Field of Civil Jurisdiction: Procedural and Legal Aspect”. According to the reviewer, in modern conditions there is a tendency towards strengthening of private law principles and the development of dispositiveness in the context of civil procedural law, which is associated, in particular, with the implementation of the ideas of economic freedom and market economy within the framework of civil circulation and the transformation of legal institutions of substantive branches of law. Proceeding from this, there is a need for new doctrinal, lawmaking and law enforcement approaches on the issue of empowering legal participants in the independent choice of forms and methods of protecting violated rights, as well as in order to influence the dynamics of procedural legal relations. This is possible through the use in legislation of the full potential of procedural agreements, the theoretical development of which was carried out in the book under review, meaningfully revealing the key aspects of the indicated problem.

A NEW LOOK AT AN OLD QUESTION – PRECISELY WHERE DOES A CAUSE OF ACTION BASED ON CONTRACT OR DELICT “ARISE” IN THE CASE OF CIVIL CLAIMS IN THE MAGISTRATES’ AND SMALL CLAIMS COURTS?

One of the chief jurisprudential considerations of the new South Africa must be access to justice. Whilst various possibilities for the realization of this imperative are aired periodically, the principles on which the civil jurisdiction of the courts is based are seldom considered in this regard. However, complex and arcane rules of jurisdiction can place what this article argues to be unfair and largely pointless limitations on a plaintiff, particularly in respect of magistrates’ and small claims courts’ actions. Section 28(1)(d) of the Magistrates’ Courts Act, for example, which confers jurisdiction on a court in relation to the locality of the cause of action, can proveparticularly problematic in the case of claims based on contract. Jurisdiction cannot be conferred under this provision unless every “element” of the contract – offer, acceptance, performance and/or breach, has occurred within the same magisterial district. This article examines the many practical problems which arise as a result, as well as various interpretations of the existing case law, which may serve to alleviate these problems to a certain extent. The authors conclude, however, that legislative reform may be the only way in which to truly solve the many dilemmas which arise in practice.