Civil Procedure Law Research Articles

Impact of the amended Chinese Marine Environmental Protection Law on the law enforcement action of the Coast Guard — With a focus on the discharge of ballast water after Japan’s releasing of nuclear wastewater into the sea

After Japan released nuclear wastewater into the Pacific Ocean, China amended and promulgated the Marine Environmental Protection Law (MEPL) on October 24, 2023. The 2023 MEPL grants the Coast Guard extraterritorial jurisdiction over marine environmental protection. Meanwhile, it removes the content related to immunity for the disposal of radioactive substances and strictly prohibits the discharge of such substances into the sea. It is suggested that the 2023 MEPL will impact Coast Guard law enforcement actions, particularly in cases involving the punishment of marine pollution caused by nuclear wastewater. Additionally, China's Civil Procedure Law on jurisdiction over foreign-related infringement cases was also amended in 2023. Chinese courts have gained broader jurisdiction in foreign-related tort cases. As a result, Japanese parties will face the risk of civil damage compensation litigation due to the disposal of nuclear wastewater.

The Role of Electronic Notification in Accelerating the Litigation Proceedings in Civil Lawsuits: (A Comparative Study)

Objective: The purpose of the article research of the topic is represented in showing the role of E-notification in accelerating the litigation proceedings in civil lawsuits, as it saves time, effort, and expense, as well as addressing the problems of traditional notification, and propose recommendations to complete the legal system concerned. Method: In the current research, which is based on the analysis of legal texts, the analytical approach and the comparative approach were adopted. A comparison was made among the" Iraqi Civil Procedure Law No. (83) of 1969 amended by Law No. (10) of 2016", and the UAE Federal Civil Procedure Law No. (11). ) for the year 1992 amended by Law No. (15) for the year 2021 and its bylaw No." (57) for the year 2018 amended by Law No. (75) for the year 2021". Results: Some valuable findings have been revealed such as The electronic notification is an effective way to accelerate the judicial proceedings because it prevents the recurrence of notification, and reduces the objection to the judgments in absentia due to the certainty of informing the defendant in addition to the ease of the notification process, regardless of the location of the defendants. Conclusion: The research employs theories that Electronic notification is a result of the advancement of current communication techniques as well as the pervasive use of mobile devices and the Internet across a variety of aspects of economic and social life. Despite this development, the Iraqi legislator still maintains the same traditional means that he put in place when enacting the Civil Procedure Code. He excluded the electronic means from all judicial proceedings from the scope of the electronic signature law, including proceedings related to the judicial notification. On the contrary, the UAE legislator adopted electronic judicial notification in order to accelerate such civil litigation proceedings.

The Fundamentality of The Right to Evidence in The Brazilian Legal System

Objective: The objective of this study is to investigate the fundamental nature of the right to evidence in the Brazilian legal system, aiming to analyze its importance for guaranteeing due process and the realization of justice. Theoretical Framework: This section presents the main concepts and theories that underpin the research. Key theories include the principle of adversarial proceedings, the principle of ample defense, and due process of law, providing a solid foundation for understanding the context of the investigation. Method: The methodology adopted for this research comprises a qualitative approach, with documentary analysis and case studies of landmark decisions in Brazilian law. Data collection was conducted through a literature review and jurisprudence analysis, focusing on higher court decisions addressing the right to evidence. Results and Discussion: The results revealed the crucial importance of the right to evidence for maintaining the balance between parties in judicial proceedings. In the discussion section, these results are contextualized in light of the theoretical framework, highlighting implications for legal practice and the protection of fundamental rights. Possible discrepancies and limitations of the study are also considered in this section. Research Implications: The practical and theoretical implications of this research are discussed, providing insights on how the results can be applied or influence practices in the field of civil and criminal procedural law. These implications may include the reformulation of judicial procedures and the training of legal professionals. Originality/Value: This study contributes to the literature by exploring the fundamental nature of the right to evidence in Brazil in a thorough and systematic manner, highlighting new findings and offering a critical analysis of judicial practices. The relevance and value of this research are evidenced by its potential to influence procedural reforms and improve the effectiveness of the judicial system.

О скрытых процессуальных правилах рассмотрения дел о расторжении брака (часть первая)

The Family Code of the Russian Federation contains a lot of procedural provisions related to the process of dissolution of marriage between spouses. However, there are almost no such special provisions in the structure of provisions of civil procedure laws. It turns out that the marriage dissolution procedure does not differ from other civil case review and resolution procedures from the procedural standpoint. However, this is not the case from the objective legal standpoint. In this article, the author shows hidden but actually existing procedural rules for review of marriage dissolution cases that need to be taken into account and observed at resolution of respective civil cases.

Проблемы правового регулирования института представительства и смежных с ним институтов гражданского процессуального права

The article studies problems of the institution of representation in a civil procedure. Based on a retrospective analysis of civil procedure laws, foreign experience, the author concludes that the losing party to a case should not pay to the person that has provided unqualified legal assistance in such case. “Reasonable limits” as a criterion for determination of the amount of compensation of expenses on a judicial representative does not make the judicial practice more certain. Qualified legal assistance has a market price; however, it is reasonable to introduce state tariffs with regards to compensation of expenses on a judicial representative to avoid abusive practices.

EU CIVIL PROCEDURE AFTER THE LISBON TREATY

With the Lisbon Treaty, a new page was opened in the development of EU civil procedure. This is so because тhe Lisbon Treaty has introduced Article 81 (ex-Article 65 EC) as a separate Chapter 3 of Title V on an Area of Freedom, Security, and Justice. With this, civil justice cooperation has gained an autonomous character and become distinct sub-area of the EU policy on Freedom, Security, and Justice.1 More importantly, the approximation of Member States’ civil procedural rules, provided for in Article 81 of the Lisbon Treaty, has gained a central role in the establishment and proper functioning of this Area and the EU in general. Precisely because of this, the subject of analysis of this paper is the new trend in the development of the civil procedure of the EU after the Lisbon Treaty, the advantages that this trend offers versus the old regime in EU and the future directions of development of the civil procedural law of the EU.

Criminalizing Civil Law Actions of Default into Criminal Acts of Fraud: A Human Rights Perspective

The terms "Default" and "Fraud" and/or “Embezzlement” are often interchanged without clarity of meaning in many discussion forums, both oral and written. This confusion can be seen from the many court decisions that acquit defendants from prosecution which have permanent legal force. The public often hears that law enforcers carry out criminalization, such as witnesses becoming suspects, suspects becoming defendants and so on by shifting the civil legal action of Default to criminal act of Fraud and/or Embezzlement. Using 'criminalization' and 'criminalized' in this article is considered inappropriate, so it has been replaced by 'criminalizing' and 'criminalized'. If there is an action to shift the civil legal act of Default into a criminal act of Fraud and/ or Embezzlement, so from a human rights perspective, it is against the law. By using normative legal research methods, this paper examines how to differentiate civil legal acts of Default from criminal acts of Fraud and/or Embezzlement, how to apply civil compensation in cases where there are already criminal legal remedies, and what is the legal and human rights perspective when criminalization occurs. This paper uses a statutory approach and a case approach. The results show: First, there is a real difference between civil legal acts of Default and criminal acts of Fraud and/ or Embezzlement; Second, the application of compensation can be carried out through criminal and civil procedural law mechanisms; Finally, criminalizing civil legal acts into criminal acts is a form of violation of human rights.

The principle of ensuring the right to appellate review of a case and, in cases determined by law, to cassation appeal of a court decision as a fundamental (constitutional) principle of Ukrainian justice

This publication is aimed at studying the principle of ensuring the right to appellate review of a case and, in cases specied by law, to cassation appeal as a fundamental constitutional principle of Ukrainian judicial procedure, and at identifying the issues of its interpretation and implementation within the framework of civil proceedings, and at formulating conclusions and proposals aimed at resolving the identied issues and contributing to the improvement of judicial practice. The paper 1-rst denes the signicance of this principle for achieving the tasks of civil procedure and analyzes its place in the system of other principles of civil procedure. It is found that the principle of ensuring the right to appeal a case and, in cases dened by law, to cassation appeal does not compete with other principles of civil procedure, but organically complements them, allowing to correct judicial errors made, thereby guaranteeing the principles of legality, objective truth and others. The analysis of the name of the studied principle revealed a legislative narrowing of its content, used by the indication of the possibility of appealing a «court decision», while other legislative provisions and the practice of civil procedure indicate the possibility of appealing rulings and orders of the court. The e-ectiveness of the legislative approach to the comprehensive nature of the appeal is substantiated, with the exclusivity and extraordinary nature of the cassation review of court decisions that have entered into legal force and the e-ectiveness of existing mechanisms for implementing this provision (a wide range of subjects of the appeal, limitation of the cassation appeal for certain categories of cases, mandatory preliminary appeal of the court decision, etc.). A certain problem was revealed during the analysis of the civil procedure law norm regarding the denition of the objects of appeal in the aspect of its content presentation through the prism of its consistency with the constitutional norm (64 of the Constitution of Ukraine), according to which the limitation of constitutional rights and freedoms of a person and citizen should be provided for by legal norms, therefore, through the prism of consistency with this provision, it would be more logical to establish a prohibition on appeal in relation to each individual judicial act. Legislative work aimed at eliminating certain imperfections in the legal regulation will contribute to a more e-ective implementation of the principle of ensuring the right to appeal a case and, in cases dened by law, to cassation appeal in the practice of civil proceedings.

Historical outline of the development of the principle of good faith in civil procedure in Germany and France

The article analyzes the concept of good faith on the example of its development in civil proceedings in Germany and France. The author traces the relationship between the good faith of Roman civil procedure and the good faith of continental European countries, which was developed through the reception of Roman law. he author examines a number of sources of the so-called barbarian law in the context of good faith and its negative manifestation - bad faith in procedural communication and counteraction thereto. The author defines good faith as a condition for proper procedural behavior in the sources of law of the Holy Roman Empire of the Germanic nation and traces the history of the term Treu und Glauben. The author examines the concepts of correlation between the Roman term bona fides and the German term Treu und Glauben, which has become a general principle of various branches of law, including civil procedure law. The author examines the presence of the good faith principle in the modern German Code of Civil Procedure. The author also analyzes the concept of the formation of the principle of good faith in civil proceedings in France, for which purpose the medieval rules of customary law contained in such legal sources as the Coutumes Beauvais are studied. Special attention is paid to an important source of French procedural law of modern times - the Ordinance of Louis XIV of 1667 (Louis Code), which was the basis for the Civil Procedure Code of Napoleon of 1806 and whose provisions contained measures to counteract the abuse of procedural rights, and in some cases the term good faith as a measure of exemplary procedural communication. The author also reviews the provisions of the current French Code of Civil Procedure, which entered into force on January 1, 1976, where the principle of good faith is applied both as a counteraction to unfair procedural behavior and as a standard of procedural behavior which provides for the proper performance of duties and exercise of rights. The author determines that the principle of good faith is primarily found in substantive law, both in Germany and France, from where it is integrated into procedural law.

Perluasan dari Alat Bukti Tertulis dalam Perspektif Hukum Acara Perdata

The rapid development of information technology, such as emails, instant messaging, and digital documents in electronic transactions, is transforming traditional methods of evidence presentation in civil court contexts. Therefore, it is necessary to conduct a study on the legality and relevance of electronic evidence within the framework of existing legislation, as well as how courts assess and accept such evidence. The research findings indicate that although electronic evidence in the form of electronic information and/or documents is recognized as valid legal evidence, challenges remain in its application, including issues of authenticity and the integrity of the submitted electronic data. Guidelines are needed to demonstrate the evidential strength of electronic evidence so that it can be accepted by the parties involved and provide clarity to judges in admitting electronic evidence as part of the evidentiary process. Furthermore, regulatory reforms are necessary to optimize the use of electronic evidence and ensure fairness in legal proceedings. These papers are expected to contribute to developing civil procedural law in the digital era.

Review of the new facts or new news contained in article 321 of the Chilean Civil Procedure Code

This paper aims to address the procedural figure of new facts or newly discovered events, recognized in some continental Procedure Codes. In this context, we will examine certain historical sources that influenced its modern legislative reception, intending to understand the institution’s meaning, which is usually studied from an evidentiary perspective, with Chilean Civil Procedural Law serving as an example. In contrast to the above, our manuscript will assert that the new facts or newly discovered events , contained in article 321 of the Chilean Código de Procedimiento Civil, operate as a legislative mechanism aimed at incorporating new factual background, expanding the subject matter of the trial, and breaking the fiction of immutability of the process derived from the general principle of the doctrine of lis pendens, which justifies the application of the institution to the Chilean labour process.

Judicial Study: Parties' Opposition (Partij Verzet) in Proceedings to Execute Land Ownership Rights Under Civil Procedure Law

Court decisions that have legal force must be complied with, and execution carried out if the losing party does not voluntarily comply with the judgment. Issues arise when the losing party appeals or takes other legal actions, delaying execution and creating legal uncertainty. Execution is applicable only to condemnatory judgments and is often obstructed by respondent's resistance, a legal challenge from the party involved in the case. The researcher highlights three cases of legal resistance efforts: the South Jakarta District Court decision number 518/Pdt.G/1999/PN Jkt.Sel, Kendal District Court decision number 20/Pdt.Bth/2021/PN Kdl, and Kendal District Court decision number 9/Pdt.Bth/2022/PN Kdl. This study employs a normative juridical method, examining descriptive-analytical literature, and utilizes a qualitative juridical approach in analysis. The research reveals discrepancies between legal certainty theory and judicial practice, where cases may not align with facts or legal standing, leading judges to reject such requests. The study concludes that respondent's resistance is a legal recourse available to the executed party against execution, which does not automatically suspend execution unless there are clear and accepted grounds recognized by the court. The Indonesian Civil Code (HIR) and Civil Procedure Law (RBg) provide legal certainty and protect the rights of those aggrieved by court decisions through the mechanism of respondent's resistance.

The Dutch Preliminary Ruling Procedure in the Light of the European Directive on Representative Actions

Abstract Dutch civil law allows courts of first and second instance to refer preliminary questions to the Supreme Court. In mass claim disputes there may be a concurrence between the safeguards of the preliminary ruling procedure and the protection provided by Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. This working paper addresses several issues regarding this concurrence. These include legal certainty, the influence of non-parties, the costs and the duration. The authors come to the conclusion that the preliminary ruling procedure can be very useful in mass claim disputes, albeit that both the lower courts and the Supreme Court need to align their practice more closely with the safeguards of the Directive on a number of points. These findings may be relevant for other European jurisdictions that recently introduced a preliminary ruling procedure, or that are about to insert a preliminary ruling procedure in their civil procedural law system.

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

Принцип диспозитивности в правовых системах государств постсоветского пространства

The article analyzes the principle of discretion in civil proceedings in the states of the post-Soviet space. It has been established that in seven out of fifteen states, including Russia, it has no normative support and is exclusively a doctrinal principle. In eight states, dispositiveness is a principle of civil procedural law. Based on a comparison of the principle of discretion in the states of the post-Soviet space, as well as Russian judicial practice, the expediency of introducing Art. 5.1 “Dispositivity”, its draft is proposed.

Study on the Legal Problems of the Exemption System of Personal Bankruptcy

The core of personal bankruptcy is the exemption system, which gives honest and unfortunate debtors a chance to start over and guarantees their basic rights of survival and development, is an important system for maintaining sound socio-economic functioning and for resolving difficult issues of court enforcement, not only in helping natural debtors in debt deadlocks in individual cases, but also in helping markets to recover as quickly as possible, thereby improving the overall well-being of society. However, throughout the world, whether it is a country that has established the personal bankruptcy system for a long time, or a country that is in the initial stage of exploring the personal bankruptcy system, personal bankruptcy exemption, a well-meaning legal system, has inevitably caused some negative effects and hindered the operation of the system as a whole. In order to guarantee the good operation of the personal bankruptcy exemption system in our country, we should establish such systems as the incentive system of the bankruptcy person with good faith and the property registration system to support the operation of the procedure, improve the link between personal bankruptcy exemption and civil law, Civil Procedure Law, company law, etc., in order to guarantee the validity and feasibility of personal bankruptcy exemption system, the procedures of debtor's application, administrator's opinion, Creditor's objection, relief and rescission are detailed.

Elements of evidence in civil jurisdiction and notary proceedings

This article covers research in the comparative aspect of the process of procuring evidence in civil proceedings and notarial proceedings, specific features of the elements of evidence in the notarial process, the peculiarities of the rules for determining the factual material to be established when a specific notarial act is performed, and the submission of evidence to support them. The essence of the proceduralists’ scientific discussion regarding the definition of the concept of evidence, its elements and subjects, as well as the obligations of evidence are covered. On the basis of the analysis of the positions of the authors expressed in the science of civil procedural law, which substantiate the opposite approaches to the mentioned issues, it is determined that the basis of this scientific discussion is the disagreement of views on the court as a subject of evidence. It is recognized that filling the terms “evidence” and “proving” with different meanings is not convincing, is not based on current procedural legislation and does not meet the interests of law enforcement practice. The article proves that the exclusion of the court from the subjects of evidence (even in relation to such an element as the collection of said evidence) contradicts the rules of evidence provision established in the current civil procedural legislation. It is concluded that such elements of evidence as indication of facts, determination of evidence, collection of evidence, research of evidence, evaluation of evidence are characteristic of civil proceedings. At the same time, it is advisable to determine the composition of subjects not for the entire procuring evidence process as a whole, but separately for each of the specified elements. For example, the court is not the subject of presenting evidence, but is the subject of research and evaluation of evidence. Evidence in a notarial process is considered as a procedural activity of notarial bodies and interested subjects of notarial proceedings, aimed at establishing legal facts necessary for the issuance of a legal and substantiated notarial act. The article substantiates that the establishment of the presence or absence of certain legal facts, with which the possibility of applying the relevant norm is connected, is carried out only within the scope of the procuring evidence process, according to special rules that provide for the rights and obligations of the subjects of notarial proceedings regarding submission, research and evaluation evidence, and have significant differences from similar rules in civil proceedings due to the undisputed nature of notarial activity.

Once Again on the Concept of Evidence in Civil Procedure Law

The article discusses the process of proof and its stages, classification of evidence. The role of forensic evidence in resolving disputes in the process is becoming increasingly important. Problems of collecting and interpreting evidence associated with the evidentiary process are of particular importance in legal disputes, since they are means of proof that determine the outcome of the judicial consideration of the dispute. The purpose of the evidence is to establish factual circumstances relevant to the resolution of the civil case. When studying scientific work, the goal is to analyze the place of judicial evidence in civil proceedings and the problems in it using the example of domestic and foreign scientific literature. The methodological basis of the study is relativity, consistency, and formal legal methods. The results obtained in the scientific work are recommended for use in judicial practice, in the science of civil procedural law, in the science of the law of evidence.

Третьи лица, не заявляющие самостоятельных требований относительно предмета спора по делам об установлении факта, имеющего юридическое значение в арбитражном процессе

Procedure of the Saratov State Law Academy, Legal Practitioner In this article, despite the impossibility of embracing the immensity, several institutions of civil procedural law are identified, which have their own characteristic questionable features of unresolved (we will clarify as we increase): third parties without claims regarding the subject matter of the dispute, special proceedings, arbitration proceedings. The importance of the role of third parties in justice has been given over a different number of times, the practical orientation of resolving indisputable cases puzzles persons in their procedural position of the arbitration court — the applicant and interested persons, or interested entities together with the applicant with the involvement of third parties without claims in the case.

Juridical Review of Electronic Agreements on Paylater Features in Indonesia

In civil procedural law in Indonesia, it is known that there are five types of evidence as regulated in Article 164 HIR/284 RBG, namely letters, witnesses, confessions, oaths and judges' allegations. The letters referred to in the first form of evidence are letters that are signed and contain legal acts. However, a letter that can be strong evidence is an authentic deed, namely a letter made by or before a notary. From here, problems arise regarding the evidentiary strength of electronic contracts if a dispute occurs between the parties. The problems that will be discussed in this research are regarding the form and validity of electronic agreements in the paylater feature in Indonesia and the evidentiary strength of electronic agreements in the paylater feature when a dispute occurs. The type of research used in this research is normative juridical. The results of this research are that the electronic contract agreement process and conventional contracts have similarities, what differentiates the two contracts is that electronic contracts are carried out without face to face and do not need to meet in person so that the electronic contract agreement process occurs more quickly, easily and efficient. Electronic contracts with Paylater are valid because they fulfill the legal requirements for an agreement based on Article 1320. Apart from that, if we examine the electronic contract, it also complies with the provisions regulated in Law Number 19 of 2016 concerning Information and Electronic Transactions. The evidentiary status of electronic evidence in civil cases in court is as valid evidence. The presence of Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Information and Electronic Transactions, as a form of confirmation of the recognition of electronic information and/or documents as legally valid evidence. As long as the information and/or electronic documents included can be accessed, displayed, their integrity is guaranteed, and can be accounted for so that they can explain a situation or event related to the dispute that occurred.