Civil Procedure Research Articles

Bilateral Lawsuits (Actio Duplex): From Roman Civil Procedure to Modern Russian Procedural Realities

This paper is a study on the so-called bilateral claims (actio duplex) of the Roman civil procedure in the context of their interpretation by scientists of the second half of the 19th — early 20th century. The author has scrutinized the monograph of E. Eck devoted to bilateral lawsuits. The monographs provides detailed conclusions of the scientist, who believed that as such the model of bilateral lawsuits was not typical for either the Roman or the civil procedure of his time. The paper also analyzes the current state of affairs in the theory of civil procedure in relation to these claims, and substantiates the law enforcement needs for the formation of a special approach to such phenomena. In the first part of the paper, we are talking about how ideas about bilateral claims of the Roman civil procedure developed mainly in German science by the beginning of the 20th century. In the second part of the article, the author concentrates on Eck’s monograph on the so-called bilateral lawsuits and sets out his views based on the study of Roman primary sources and their subsequent analysis. Eck’s arguments are also described in detail. This is about the non-dual nature of claims for the division of common property. The third part of the article focuses on modern Swiss civil procedure and Russian procedural realities. As a result, the author formulates a number of signs of claims related to the so-called bilateral award, which allow them to be considered as a separate legal phenomenon.

Search for a Standard of Proof in the Lithuanian Civil Procedure

The article analyses the issues related to the standard of proof in the Lithuanian civil procedure. The study reveals that the social school of the civil procedure, on which the Code of Civil Procedure of the Republic of Lithuania is based, and the objective of establishing the substantive truth justify the application of the intime conviction standard in Lithuanian civil proceedings.The first part of the article analyses the historical sources of the Lithuanian civil procedure law which lead to the conclusion that, since the 19th century, the Lithuanian civil procedure has followed the ideas based on the social civil procedure school.The second part reveals that the concept of substantive truth, which means that the Court is fully or almost fully satisfied as to the correctness of the decision to be given in a case, has the closest connection with the social civil procedure school. This notion of truth determines a specific standard of proof, i.e., the application of the intime conviction standard.In the third part, by taking into account the social school of the civil procedure, the purpose of substantive truth and the provisions of the Lithuanian Code of Civil Procedure, it is concluded that the standard of intime conviction must be applied in Lithuanian civil proceedings.The fourth part reveals the Case Law of the Supreme Court of Lithuania concerning the standard of proof and its developments.

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.

Rule of Law v. Balancing Test: The Admissibility of Illegally Obtained Evidence in Civil Procedure

Abstract The article aims to reveal, explain and critically assess the balancing test as a legal tool to decide on the admissibility of illegally obtained evidence in civil procedure. The main part of the article is divided into four sections. First of all, the article provides a general overview of the concept of illegally obtained evidence. In other words, the research tries to outline how the concept of illegally obtained evidence should be understood. Secondly, the article provides an overview of one of the most common ways of resolving the issue of the admissibility of illegally obtained evidence – the balancing test. Thirdly, the article assesses the balancing test while employing two requirements derived from the rule of law. The research shows that, in the context of the admissibility of illegally obtained evidence, the balancing test does not meet 1) the requirement of legal certainty and 2) the requirement that civil procedure must be based on the rule of law and not on the rule of men. Lastly, the article concludes that in order to avoid identified shortcomings, the balancing tests should be characterised by a predefined exhaustive list of criteria that should be balanced when deciding on the admissibility of illegally obtained evidence and should not contain too broad, vague balancing criteria.

Features of the Special Civil Procedure for Small Value Disputes in Countries of the Balkan Region

Disputes of small value, as defined by the provisions of the Law on Civil Procedure (LCP), refer to those legal disputes where the claim pertains to a monetary amount that does not exceed 500 Euros. In addition to monetary claims, disputes of small value also include claims where the plaintiff does not seek money directly but states that a payment of no more than 500 Euros could satisfy their non-monetary claim. Moreover, disputes of small value also encompass cases where the subject of the claim is not money but rather the transfer of movable property, which, according to the plaintiff, has a value not exceeding 500 Euros. The LCP clearly outlines these criteria to ensure that such cases are processed efficiently and fairly, taking into account the relatively low stakes involved. By categorizing these disputes as small value, the LCP aims to simplify procedures and reduce the burden on the courts, ensuring quicker resolutions for the parties involved.

Climate Change Mitigation through Civil Procedure? Justiciability in Two Nordic Climate Cases

Abstract Although the phenomenon of climate change litigation has flourished in certain European countries, it has so far been limited in the Nordic countries. A reason might be that the Nordic countries do not have a strong tradition of judicial review or rights-based litigation. The role of the courts was long considered to be less about controlling that the legislature lived up to constitutional and international obligations, than ensuring the realisation in practice of the substantive law, by resolving concrete disputes. Through the analysis of issues of justiciability in one Norwegian and one Swedish climate case, this article discusses the role of the judiciary in climate cases. It is argued that the cases illustrate a tension between on the one hand the right to access to a court and judicial review, and on the other, a more limited and traditional understanding of the role of the court, which focuses on the resolution of concrete disputes. At the same time, the cases are considered to indicate that climate change litigation can bring about change in the judicial interpretation of procedural law.

The Situation of the Jordanian Legislator from the Interpretation of the Judicial Judgment

Study aims to discuss regulating the provisions of judicial judgments interpretation in Jordanian law regarding the practical necessity in making the ambiguous judgments issued by the court enforceable. As well as the provision in the execution law obliges the chief executive officer to request clarification from the court (issued the judgment) due to its ambiguity, which does not replace the importance of regulating this issue in the Jordanian Code of Civil Procedure. The researcher concluded that the regulation of the provisions of judicial judgments interpretation in Jordanian Civil Code, which is tainted with ambiguity, must include granting the right to request interpretation to the litigants and to the court (issued the judgment). It shall also include provisions of the ruling interpretation and grant the right to the litigants and the court in requesting the interpretation. So that the court shall always be competent to request the interpretation, if it has to comply with the interpretation regulations in order not to abuse the authority in interpreting in a way that makes its judgment subject to appeal. The researcher also discusses the importance of determining the procedures that shall be followed to submit the interpretation request; moreover, the researcher concludes the impact of appealing the original judgment issued by the court.

Vulnerable to Inadequate Representation?

Abstract Collective redress mechanisms pose manifold challenges for the individualistic two-party paradigm of civil procedure. The EU Representative Actions Directive – transposed into German law with the Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz – VDuG) – is built on a representative mechanism: Qualified entities (ie mostly consumer organisations) may bring actions on behalf of consumers for injunctive or redress measures against traders infringing consumer protection law. An often-neglected facet of collective redress is the vulnerability of absent plaintiffs, if collective judgments bind absent plaintiffs regardless of the adequacy of their representation. Consumers relying on their representatives could lose their actually well-founded claims as a result of inadequate representation by the representative consumer organisation and its attorneys. This article considers post-judgment safeguards against inadequate representation: As a procedural remedy, so-called collateral attacks would allow consumers to negate the binding effect of the collective judgment in cases of inadequate representation. Complementarily, the analysis turns to remedies in substantive law and considers the viability of liability actions against the representative consumer organisation or its attorneys.

The right to effective redress from the municipality for failure to provide social housing

Abstract Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms provides that every natural and legal person is entitled to the peaceful enjoyment of their possessions. No one shall be deprived of their possessions except in the public interest and subject to the conditions provided by law and the general principles of international law. The primary purpose of these provisions is to protect property. By recognising that everyone has the right to the peaceful enjoyment of their possessions, Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms effectively guarantees the right to property, with deprivation of property permissible only under certain conditions. These guarantees are not sufficiently implemented in national case law. Although municipalities are required to provide compensation (Article 18(3a) of the Act on the Protection of Tenants’ Rights, Housing Resources of Municipalities and on Amendments to the Civil Code), the courts are too stringent in assessing the evidentiary requirements imposed on applicants. In the case of Wyszyński v. Poland, where the applicant was not awarded damages from the municipality for failing to provide social housing, the Court rightly noted that the domestic courts assumed that the applicant had failed to prove that the damage sustained was a normal consequence of the municipality’s unlawful inactivity, even though two expert opinions were produced during the proceedings. In the case of Broniowski v. Poland, concerning property beyond the Bug River, it was clearly indicated that the taking of property without compensation in reasonable proportion to its value is generally considered disproportionate interference, and a total absence of compensation can only be justified in exceptional circumstances. It also appears essential, when assessing the existence of an adequate causal link, to rely on the knowledge and life experience of the adjudicating panel, applied appropriately to the circumstances of the case. The requirements as to the proof of damage should not be interpreted too strictly. There is a need to liberalise evidentiary proceedings and make broader use of factual presumptions (Article 231 of the Code of Civil Procedure), as well as to limit the evidence required for substantiation, to ensure that the owner can effectively seek compensation from the municipality for failure to provide social housing. Clear legislative intervention is necessary to address the defective court practices. It would be advisable to make an explicit procedural reference to the application of Article 322 of the Code of Civil Procedure in this category of cases, not only regarding the amount of damage but also concerning the fact that it occurred.

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.

Special Legal Relationships and Liability Issues in Relation to Evidence Handed over to A Forensic Expert by a Civil Court

The paper takes a recent case as a starting point to examine how the disappearance of the object of examination from a forensic expert appointed by the trial court should be assessed in the light of civil law, civil procedure and constitutional law. The analysis will focus on the specific legal relationships and liabilities associated with the appointment of an expert. The theoretical conclusions on these issues are the starting point for the fundamental question, of constitutional importance, of whether a judgment can be based on an expert’s opinion that was drawn up without the expert having returned the object of the examination although he should have done so. The study also attempts to answer this question.

Responsibilities and Legal Protection for Notaries in Civil Procedure for Deeds That Have Been Issued

Responsibilities and Legal Protection for Notaries in Civil Procedure for Deeds That Have Been Issued

The Impact of the EU General Data Protection Regulation on the Admissibility of Evidence in Lithuanian Civil Procedure

The Impact of the EU General Data Protection Regulation on the Admissibility of Evidence in Lithuanian Civil Procedure

Альтернативные способы возмещения вреда, причиненного лицу незаконной уголовно-процессуальной деятельностью

The article reviews grounds of the legal liability of the state to parties to criminal proceedings for the damage caused to them by illegal criminal procedure activities. The main attention is paid to the damage compensation procedure pursuant to Part 3, Art. 133 of the Criminal Procedure Code of the Russian Federation that is fundamentally different from compensation of damage to an exonerated person under the judicial procedure governed by Art. 399 of the Criminal Procedure Code of the Russian Federation. The author uses judicial cases with identified problems of establishment of grounds for compensation of damage caused by illegal criminal procedure activities, in particular, illegal application of measures of procedural coercion, as a basis to conclude that the traditional civil procedure for compensation of damage caused by illegal criminal proceedings often fails to conform to the reasonable term of judicial proceedings, and not every damage caused to parties to criminal procedure activities by coercive procedural measures can and must be compensated within the framework of the undertaken liability of the state to parties to criminal proceedings.

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.

Witness immunity in civil proceedings: advantage or necessity?

The article is devoted to the study of the legal category “witness immunity”, which is used in civil proceedings. The question of the legal nature of the immunity of a witness in civil proceedings and the practical application of the norms of the current civil procedural legislation, which creates the possibility of the existence of such a legal category, is relevant in the conditions of the focus of the current legislation on the observance of human rights and the provision of guarantees for the realization of the rights and legitimate interests of a person. Therefore, special attention in the article is devoted to clarifying the legal benefit of witness immunity and the role of this legal instrument in ensuring the legal rights and interests of a person during the consideration of a civil case in court. Тhe article analyzes the norms of the Civil Procedure Code of Ukraine, which establish the legal status of a witness in civil proceedings. Particular attention was paid to the characteristic features of witness participation in civil proceedings. The author emphasizes the importance of protecting a person’s private interest during civil proceedings. During the research, it was established that the immunity of a witness in the scientific literature is interpreted both as the right of a person involved in the consideration of a civil case in court as a witness, and as a privilege that distinguishes a witness from other participants in the legal process. Based on the analysis of the norms of the current legislation and sources of scientific legal literature, conclusions were made that allow us to assert that the immunity of a witness in civil proceedings is a component of the procedural status of a witness. It was also concluded that the immunity of a witness is precisely the right of a person involved in the consideration of a court case as a witness, which is due to the need to observe the rights and freedoms of a person during civil proceedings, and is also a form of embodying the priority of a person’s private interests. And that is why it is not appropriate to consider the immunity of a witness as a privilege of a person and an advantage of the participation of a witness in civil proceedings in comparison with other participants in the judicial process.

Реформирование гражданского процесса в Израиле: между общим правом и собственными подходами

The article examines the reasons why Anglo-American law has had an impact on Israeli legislation. Although Israel’s legislature abandoned English law as a source of law in 1980, the influence of Anglo-American procedural law continues to be noticeable, particularly in the new Rules of Civil Procedure of 2018. Additionally, there are certain changes that are unique to the Israeli legal system, such as legal pluralism that is evident in the operation of parallel jurisdictions. The article also discusses the abandonment of certain procedures in Israel’s legal system.

Limitations of Applicability of Civil Procedure Code to Family Court Proceedings

To summarize the versatility of civil law and what all it entails in a single tight compartment is akin to doing injustice to the vast field of civil law. To streamline the procedure of the same, the Civil Procedure Code came into the being. The code was introduced with the basic aim to rationalize and consolidate the process to be following while adjudicating matters related to civil law. With the introduction of Hindu Marriage Act, 1955, Muslim Marriage Act, Special Marriage Act, 1955 and so on coupled with the rise in matrimonial related disputes and resultant sharp rise in the number of cases being filed, the Family Courts Act, 1984 was incepted. Eventually all states too made their own rules to bring together the whole process in a linear manner. In this paper the author aims to analyse as to what extent CPC determines the functioning of cases filed under the ambit of family Law and if at all the family courts by virtue of Family Courts Act, 1984 have been given certain independence in this aspect. If yes, then where does that stem from primarily and in case of conflict between the two which one would prevail.

Signs of the subjective side of murder as a typical legal construction

The basic law of our state enshrines the conceptual provision, according to which human rights and freedoms and their guarantees determine the content and direction state activities. And therefore the protection of a person from criminal offenses, the protection of his rights, freedoms and legitimate interests is one of the most important tasks of state policy. One of the most important issues in the application of the criminal law is the definition of which one the criminal offense was committed by a person and under what criminal law the offense is foreseen. This issue is resolved in the process of criminal qualification Offenses Demarcation of the components of individual criminal offenses is important significance in the process of carrying out criminal-legal qualification. Meaning of legal practices, precedents and doctrines of criminal law for proper qualification criminal offenses are difficult to overestimate. The subjective side of criminal offenses (crimes, criminal misdemeanors) is an important part application of the law on criminal liability. The demands of today require a clear understanding of the theory of the subjective side of the criminal offense and practice. The modern stage of the development of the domestic science of criminal law and process determines the need for further research of scientific views on the theory of qualification criminal offenses and their successful application by law enforcement agencies, which will unconditionally contribute to the correctness and unity of judicial practice in solving tasks criminal proceedings. At the same time, ensuring the unity of practice is implementation the principle of legal certainty, which is embodied in compliance with general principles criminal proceedings established in Art. 7 of the Code of Civil Procedure, by means of the same application specific rule of law in similar legal relations. Correct qualification of a criminal offense for a committed socially dangerous act is mandatory a condition for the administration of justice in accordance with the law and one of the guarantees of compliance the convention requirement of the human right to a fair trial, provided for in Article 6 of the Convention on the protection of human rights and fundamental freedoms of 1950. Key words: murder, subjective side of criminal offenses (crimes, criminal misdemeanors), theory of qualification of criminal offenses, qualification criminal offenses on subjective grounds, court practice.